Rule 41 — Search and Seizure

Fed. R. Crim. P. 41

• Source: Federal Rules of Criminal Procedure
• Rule: 41
• TITLE VIII: SUPPLEMENTARY AND SPECIAL PROCEEDINGS
• Citation: Fed. R. Crim. P. 41

Text

(a) Scope and Definitions.
(1) Scope. This rule does not modify any statute regulating
search or seizure, or the issuance and execution of a search
warrant in special circumstances.
(2) Definitions. The following definitions apply under this
rule:
(A) ‘‘Property’’ includes documents, books, papers, any
other tangible objects, and information.
(B) ‘‘Daytime’’ means the hours between 6:00 a.m. and
10:00 p.m. according to local time.
(C) ‘‘Federal law enforcement officer’’ means a govern-
ment agent (other than an attorney for the government)

who is engaged in enforcing the criminal laws and is with-
in any category of officers authorized by the Attorney
General to request a search warrant.
(D) ‘‘Domestic terrorism’’ and ‘‘international terrorism’’
have the meanings set out in 18 U.S.C. §2331.
(E) ‘‘Tracking device’’ has the meaning set out in 18
U.S.C. §3117(b).
(b) Venue for a Warrant Application. At the request of a federal
law enforcement officer or an attorney for the government:
(1) a magistrate judge with authority in the district—or if
none is reasonably available, a judge of a state court of record
in the district—has authority to issue a warrant to search for
and seize a person or property located within the district;
(2) a magistrate judge with authority in the district has au-
thority to issue a warrant for a person or property outside the
district if the person or property is located within the district
when the warrant is issued but might move or be moved out-
side the district before the warrant is executed;
(3) a magistrate judge—in an investigation of domestic ter-
rorism or international terrorism—with authority in any dis-
trict in which activities related to the terrorism may have oc-
curred has authority to issue a warrant for a person or prop-
erty within or outside that district;
(4) a magistrate judge with authority in the district has au-
thority to issue a warrant to install within the district a
tracking device; the warrant may authorize use of the device
to track the movement of a person or property located within
the district, outside the district, or both; and
(5) a magistrate judge having authority in any district
where activities related to the crime may have occurred, or in
the District of Columbia, may issue a warrant for property
that is located outside the jurisdiction of any state or district,
but within any of the following:
(A) a United States territory, possession, or common-
wealth;
(B) the premises—no matter who owns them—of a United
States diplomatic or consular mission in a foreign state,
including any appurtenant building, part of a building, or
land used for the mission’s purposes; or
(C) a residence and any appurtenant land owned or
leased by the United States and used by United States per-
sonnel assigned to a United States diplomatic or consular
mission in a foreign state.
(6) a magistrate judge with authority in any district where
activities related to a crime may have occurred has authority
to issue a warrant to use remote access to search electronic
storage media and to seize or copy electronically stored infor-
mation located within or outside that district if:
(A) the district where the media or information is lo-
cated has been concealed through technological means; or
(B) in an investigation of a violation of 18 U.S.C.
§1030(a)(5), the media are protected computers that have
been damaged without authorization and are located in
five or more districts.
(c) Persons or Property Subject to Search or Seizure. A warrant
may be issued for any of the following:

(1) evidence of a crime;
(2) contraband, fruits of crime, or other items illegally pos-
sessed;
(3) property designed for use, intended for use, or used in
committing a crime; or
(4) a person to be arrested or a person who is unlawfully re-
strained.
(d) Obtaining a Warrant.
(1) In General. After receiving an affidavit or other informa-
tion, a magistrate judge—or if authorized by Rule 41(b), a
judge of a state court of record—must issue the warrant if
there is probable cause to search for and seize a person or
property or to install and use a tracking device.
(2) Requesting a Warrant in the Presence of a Judge.
(A) Warrant on an Affidavit. When a federal law enforce-
ment officer or an attorney for the government presents
an affidavit in support of a warrant, the judge may require
the affiant to appear personally and may examine under
oath the affiant and any witness the affiant produces.
(B) Warrant on Sworn Testimony. The judge may wholly
or partially dispense with a written affidavit and base a
warrant on sworn testimony if doing so is reasonable
under the circumstances.
(C) Recording Testimony. Testimony taken in support of a
warrant must be recorded by a court reporter or by a suit-
able recording device, and the judge must file the tran-
script or recording with the clerk, along with any affida-
vit.
(3) Requesting a Warrant by Telephonic or Other Reliable
Electronic Means. In accordance with Rule 4.1, a magistrate
judge may issue a warrant based on information commu-
nicated by telephone or other reliable electronic means.
(e) Issuing the Warrant.
(1) In General. The magistrate judge or a judge of a state
court of record must issue the warrant to an officer authorized
to execute it.
(2) Contents of the Warrant.
(A) Warrant to Search for and Seize a Person or Property.
Except for a tracking-device warrant, the warrant must
identify the person or property to be searched, identify
any person or property to be seized, and designate the
magistrate judge to whom it must be returned. The war-
rant must command the officer to:
(i) execute the warrant within a specified time no
longer than 14 days;
(ii) execute the warrant during the daytime, unless
the judge for good cause expressly authorizes execu-
tion at another time; and
(iii) return the warrant to the magistrate judge des-
ignated in the warrant.
(B) Warrant Seeking Electronically Stored Information. A
warrant under Rule 41(e)(2)(A) may authorize the seizure
of electronic storage media or the seizure or copying of
electronically stored information. Unless otherwise speci-
fied, the warrant authorizes a later review of the media or

information consistent with the warrant. The time for exe-
cuting the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to
the seizure or on-site copying of the media or information,
and not to any later off-site copying or review.
(C) Warrant for a Tracking Device. A tracking-device war-
rant must identify the person or property to be tracked,
designate the magistrate judge to whom it must be re-
turned, and specify a reasonable length of time that the
device may be used. The time must not exceed 45 days
from the date the warrant was issued. The court may, for
good cause, grant one or more extensions for a reasonable
period not to exceed 45 days each. The warrant must com-
mand the officer to:
(i) complete any installation authorized by the war-
rant within a specified time no longer than 10 days;
(ii) perform any installation authorized by the war-
rant during the daytime, unless the judge for good
cause expressly authorizes installation at another
time; and
(iii) return the warrant to the judge designated in
the warrant.
(f) Executing and Returning the Warrant.
(1) Warrant to Search for and Seize a Person or Property.
(A) Noting the Time. The officer executing the warrant
must enter on it the exact date and time it was executed.
(B) Inventory. An officer present during the execution of
the warrant must prepare and verify an inventory of any
property seized. The officer must do so in the presence of
another officer and the person from whom, or from whose
premises, the property was taken. If either one is not
present, the officer must prepare and verify the inventory
in the presence of at least one other credible person. In a
case involving the seizure of electronic storage media or
the seizure or copying of electronically stored informa-
tion, the inventory may be limited to describing the phys-
ical storage media that were seized or copied. The officer
may retain a copy of the electronically stored information
that was seized or copied.
(C) Receipt. The officer executing the warrant must give
a copy of the warrant and a receipt for the property taken
to the person from whom, or from whose premises, the
property was taken or leave a copy of the warrant and re-
ceipt at the place where the officer took the property. For
a warrant to use remote access to search electronic stor-
age media and seize or copy electronically stored informa-
tion, the officer must make reasonable efforts to serve a
copy of the warrant and receipt on the person whose prop-
erty was searched or who possessed the information that
was seized or copied. Service may be accomplished by any
means, including electronic means, reasonably calculated
to reach that person.
(D) Return. The officer executing the warrant must
promptly return it—together with a copy of the inven-
tory—to the magistrate judge designated on the warrant.
The officer may do so by reliable electronic means. The

judge must, on request, give a copy of the inventory to the
person from whom, or from whose premises, the property
was taken and to the applicant for the warrant.
(2) Warrant for a Tracking Device.
(A) Noting the Time. The officer executing a tracking-de-
vice warrant must enter on it the exact date and time the
device was installed and the period during which it was
used.
(B) Return. Within 10 days after the use of the tracking
device has ended, the officer executing the warrant must
return it to the judge designated in the warrant. The offi-
cer may do so by reliable electronic means.
(C) Service. Within 10 days after the use of the tracking
device has ended, the officer executing a tracking-device
warrant must serve a copy of the warrant on the person
who was tracked or whose property was tracked. Service
may be accomplished by delivering a copy to the person
who, or whose property, was tracked; or by leaving a copy
at the person’s residence or usual place of abode with an
individual of suitable age and discretion who resides at
that location and by mailing a copy to the person’s last
known address. Upon request of the government, the judge
may delay notice as provided in Rule 41(f)(3).
(3) Delayed Notice. Upon the government’s request, a mag-
istrate judge—or if authorized by Rule 41(b), a judge of a state
court of record—may delay any notice required by this rule if
the delay is authorized by statute.
(g) Motion to Return Property. A person aggrieved by an unlaw-
ful search and seizure of property or by the deprivation of prop-
erty may move for the property’s return. The motion must be
filed in the district where the property was seized. The court must
receive evidence on any factual issue necessary to decide the mo-
tion. If it grants the motion, the court must return the property
to the movant, but may impose reasonable conditions to protect
access to the property and its use in later proceedings.
(h) Motion to Suppress. A defendant may move to suppress evi-
dence in the court where the trial will occur, as Rule 12 provides.
(i) Forwarding Papers to the Clerk. The magistrate judge to
whom the warrant is returned must attach to the warrant a copy
of the return, of the inventory, and of all other related papers and
must deliver them to the clerk in the district where the property
was seized.
(As amended Dec. 27, 1948, eff. Oct. 20, 1949; Apr. 9, 1956, eff. July
8, 1956; Apr. 24, 1972, eff. Oct. 1, 1972; Mar. 18, 1974, eff. July 1, 1974;
Apr. 26 and July 8, 1976, eff. Aug. 1, 1976; Pub. L. 95–78, §2(e), July
30, 1977, 91 Stat. 320, eff. Oct. 1, 1977; Apr. 30, 1979, eff. Aug. 1, 1979;
Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 25, 1989, eff. Dec. 1, 1989; May 1,
1990, eff. Dec. 1, 1990; Apr. 22, 1993, eff. Dec. 1, 1993; Pub. L. 107–56,
title II, §219, Oct. 26, 2001, 115 Stat. 291; Apr. 29, 2002, eff. Dec. 1,
2002; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 23, 2008, eff. Dec. 1, 2008;
Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 26, 2011, eff. Dec. 1, 2011; Apr.
28, 2016, eff. Dec. 1, 2016.)
Criminal Contempt
(a) Disposition After Notice. Any person who commits criminal
contempt may be punished for that contempt after prosecution on
notice.
(1) Notice. The court must give the person notice in open
court, in an order to show cause, or in an arrest order. The no-
tice must:
(A) state the time and place of the trial;
(B) allow the defendant a reasonable time to prepare a
defense; and
(C) state the essential facts constituting the charged
criminal contempt and describe it as such.
(2) Appointing a Prosecutor. The court must request that the
contempt be prosecuted by an attorney for the government,
unless the interest of justice requires the appointment of an-
other attorney. If the government declines the request, the
court must appoint another attorney to prosecute the con-
tempt.
(3) Trial and Disposition. A person being prosecuted for
criminal contempt is entitled to a jury trial in any case in
which federal law so provides and must be released or detained
as Rule 46 provides. If the criminal contempt involves dis-
respect toward or criticism of a judge, that judge is disquali-
fied from presiding at the contempt trial or hearing unless the
defendant consents. Upon a finding or verdict of guilty, the
court must impose the punishment.
(b) Summary Disposition. Notwithstanding any other provision
of these rules, the court (other than a magistrate judge) may sum-
marily punish a person who commits criminal contempt in its
presence if the judge saw or heard the contemptuous conduct and
so certifies; a magistrate judge may summarily punish a person as
provided in 28 U.S.C. §636(e). The contempt order must recite the
facts, be signed by the judge, and be filed with the clerk.

Advisory Committee Notes

(As amended Mar. 9, 1987, eff. Aug. 1, 1987; Apr. 29, 2002, eff. Dec. 1, 2002.)