Search And Seizure

(a) In General (1) Definition. A search warrant is an order in writing, made in the name of the state, signed by the magistrate, directed to a peace officer, commanding the peace officer to search for property, evidence or a person. (2) Authority to Issue a Warrant. A state or federal magistrate acting within or for the territorial jurisdiction where the property, evidence or person sought is located, or from which it has been removed, may issue a search warrant authorized by this rule. (b) Property, Evidence or Persons Subject to Search and Seizure. A warrant may be issued for any of the following: (1) property that constitutes evidence of a crime; (2) contraband, the fruits of crime, or things criminally possessed; (3) property designed or intended for use, or which is or has been used as the means of, committing a crime; (4) a person for whose arrest there is probable cause, or who is unlawfully restrained. (c) Issuing the Warrant. (1) Warrant on Affidavit or Sworn Recorded Testimony. (A) In General. A warrant other than a warrant on oral testimony under Rule 41 (c)(2) may issue only when the grounds for issuing the warrant are established in: (i) a written declaration made and subscribed under penalty of perjury, or (ii) an affidavit or affidavits sworn to or sworn recorded testimony taken before a state or federal magistrate. (B) Examination. Before ruling on a request for a warrant, the magistrate may require the licensed peace officer, affiant or other witnesses to appear personally and may examine under oath the licensed peace officer, affiant and any witnesses the affiant may produce. This examination must be recorded and made part of the proceedings. (C) Probable Cause. If the state or federal magistrate is satisfied that grounds for the application exist or that there is probable cause to believe they exist, the magistrate must issue a warrant identifying the property, evidence or person to be seized and naming or describing with particularity the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. (D) Command to Search. The warrant must be directed to a peace officer authorized to enforce or assist in enforcing any law of this state. It must command the officer to search, within a specified period of time not to exceed ten days, the person or place named for the property, evidence or person specified. (E) Service and Return. The warrant must be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime. It may designate a state or federal magistrate to whom it must be returned. (2) Warrant by Telephonic or Other Reliable Electronic Means. In accordance with Rule 4.1 , the magistrate may issue a warrant based on information communicated by telephone or other reliable electronic means. (3) Warrant Seeking Electronically Stored Information. A warrant under Rule 41(c) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review. (d) Execution and Return With Inventory. (1) Execution. The person who executes the warrant must enter the date and time of the execution on the face of the warrant. (2) Inventory. An officer present during the execution of the warrant must prepare and verify an inventory of any property or evidence seized. The officer must do so in the presence of the applicant for the warrant and the person from whom, or from whose premises, the property or evidence 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 information, the inventory may be limited to describing the physical storage media that were seized or copied. The officer may retain a copy of the electronically stored information that was seized or copied. (3) Receipt. The officer taking property or evidence under the warrant must: (A) give a copy of the warrant and a receipt for the property or evidence taken to the person from whom or from whose premises the property or evidence was taken; or (B) leave a copy of the warrant and receipt at the place from which the officer took the property or evidence; (C) preserve the property or evidence taken until the court directs its proper disposition. (4) Return. The officer executing the warrant must promptly return it—together with a copy of the inventory—to the magistrate designated on the warrant. The officer may do so by reliable electronic means. The magistrate on request must give a copy of the inventory to the person from whom, or from whose premises, the property or evidence was taken and to the applicant for the warrant. (e) Motion for Return of Property or Evidence . A person aggrieved by an unlawful search and seizure of property or evidence or by the deprivation of property may move the trial court for the return of the property or evidence. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property or evidence to the moving party, although the court may impose reasonable conditions to protect access and use of the property or evidence in later proceedings. If a motion for return of property or evidence is made or heard after an indictment, information, or complaint is filed, it must be treated also as a motion to suppress under Rule 12. (f) Motion to Suppress. A motion to suppress evidence may be made in the trial court as provided in Rule 12. (g) Return of Papers to Clerk. The magistrate to whom the warrant is returned must attach to the warrant a copy of the return, inventory and all other related papers and must file them with the clerk of the trial court. (h) 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 and any other tangible objects. (B) "Daytime" means the hours from 6:00 a.m. to 10:00 p.m. according to local time.