Rule 41 Search and Seizure

(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a judge upon the request of a policeman or an attorney for the government

(b) Property or Persons Which May be Seized With a Warrant. A warrant may be issued under this rule to search for and seize any

(1) property that constitutes evidence of the commission of a criminal offense; or

(2) contraband, the fruits of crime, or things otherwise criminally possessed; or

(3) property designed or intended for use or which is or has been used as the means of conunitting a criminal offense; or

(4) person for whose arrest there is probable cause, or who is unlawfully restrained.

(c) Issuance and Contents.

(1) Warrant Upon Affidavit. A warrant other than a warrant upon oral testimony under paragraph (2) of this subdivision shall issue only on an affidavit or affidavits sworn to before a judge and establishing the grounds for issuing the warrant If the judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, the judge shall issue a warrant identifying the property or person to be seized and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant, the judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he/she may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made pan of the affidavit. The warrant shall be directed to a policeman. It shall command the officer to search, within a specified period of time not to exceed ten ( 10) days, the person or place named for the property or person specified. The warrant shall 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 shall designate the judge to whom it shall be returned.

(2) Warrant Upon Oral Testimony.

(A) General Rule. If the circumstances make it reasonable to dispense with a written affidavit, a judge may issue a warrant based upon sworn oral testimony communicated by telephone or other appropriate means.

(B) Application. The person who is requesting the warrant shall prepare a document to be known as a duplicate original warrant and shall read such duplicate original warrant, verbatim to the judge. The judge shall enter, verbatim, what is so read to such judge on a document to be known as the original warrant. The judge may direct that the warrant be modified.

(C) Issuance. If the judge is satisfied that the circumstances are such as to make it reasonable to dispense with a written affidavit and that grounds for the application exist or that there is probable cause to believe that they exist, the judge shall order the issuance of a warrant by directing the person requesting the warrant to sign the judge's name on the duplicate original warrant. The judge shall immediately sign the original warrant and enter on the face of the original warrant the exact time when the warrant was ordered to be issued. The finding of probable cause for a warrant upon oral testimony may be based on the same kind of evidence as is sufficient for a warrant upon affidavit.

(D) Recording and Certification of Testimony. When a caller informs the judge that the purpose of the call is to request a warrant, the judge shall immediately place under oath each person whose testimony forms a basis of the application and each person applying for that warrant. If a voice recording device is available, the judge shall record by means of such device all of the call after the caller informs the judge that the purpose of the call is to request a warrant. Otherwise a stenographic or longhand verbatim record shall be made. If a voice recording device is used or a stenographic record made, the judge shall have the record transcribed, shall certify the accuracy of the transcription, and shall file a copy of the original record and the transcription with the court. If a longhand verbatim record is made, the judge shall file a signed copy with the court.

(E) Contents. The contents of a warrant upon oral testimony shall be the same as the contents of a warrant upon affidavit.

(F) Additional Rule for Execution. The person who executes the warrant shall enter the exact time of execution on the face of the duplicate original warrant.

. (G) Motion to Suppress Precluded. Absent a finding of bad faith, evidence obtained pursuant to a warrant issued under this paragraph is not subject to a motion to suppress on the ground that the circumstances were not such as to make it reasonable to dispense with a written affidavit.

(d) Execution and Return With Inventory. The policeman taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave a copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises was taken, if they are present, or in the presence of at least one credible person from whose possession or premises the property was taken, and shall be verified by the policeman. The judge shall upon request deliver a copy of the inventory to the person from whom or whose premises the property was taken and to the applicant for the warrant.

(e) Motion for Return of Property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the court for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing after an information is filed, it shall be treated also as a motion to suppress under Rule 12.

(f) Motion to Suppress. A motion to suppress evidence may be made as provided in Rule 12.

(g) Return of Papers to Clerk. The judge before whom the warrant is issued shall attach to the warrant a copy of the return, inventory, and all other papers in connection therewith and shall file them with the clerk of court.

(h) Scope and Definition. This rule does not modify any act, inconsistent with it, regulating search and seizure and the issuance and execution of search warrants in circumstances for which special provision is made. The term "property" is used in this rule to include documents, books, papers, and any other tangible objects. The term "daytime" is used in this rule to mean the hours from 6:00 a.m. to 10:00 p.m.