Miss. R. Crim. P. 4.1

History

Comment: Generally, Rule 4 protects the rights guaranteed by article 3, section 23, of the Mississippi Constitution (“The people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause, supported by oath or affirmation, specially designating the place to be searched and the person or thing to be seized.”). The Rule is broad enough to embrace the issuance of anticipatory search warrants; a warrant to search for things that are not within the jurisdiction when the warrant is issued, but that are expected to be within the jurisdiction when the search is conducted, is valid if it otherwise complies with the United States Constitution, the Mississippi Constitution, and Rule 4. See United States v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006). Rule 4.1 describes the persons and/or things that may be seized with a lawfully-issued search warrant. Issuance of a search warrant to search for items of solely “evidential value” is authorized. Warden, Md. Penitentiary v. Haden, 387 U.S. 294, 300-01, 87 S. Ct. 1642, 1647, 18 L. Ed. 2d 782 (1967). Section (b)(4) permits issuance of a warrant to search for a person under two circumstances: when there is probable cause to arrest that person or when that person is being unlawfully restrained. There may be instances in which a search warrant would be required to conduct a search in either of these circumstances. Even when a search warrant would not be required to enter a place to search for a person, a procedure for obtaining a warrant should be available so that law enforcement officers will be encouraged to resort to the preferred alternative of acquiring “an objective predetermination of probable cause.” Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).