Fed. R. Crim. P. 41

(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 government agent (other than an attorney for the government)

55 Rule 41 FEDERAL RULES OF CRIMINAL PROCEDURE

who is engaged in enforcing the criminal laws and is within 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 authority 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 outside the district before the warrant is executed;

(3) a magistrate judge—in an investigation of domestic terrorism or international terrorism—with authority in any district in which activities related to the terrorism may have occurred has authority to issue a warrant for a person or property within or outside that district;

(4) a magistrate judge with authority in the district has authority 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 commonwealth;

(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 personnel 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 information located within or outside that district if:

(A) the district where the media or information is located 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:

56 Rule 41 FEDERAL RULES OF CRIMINAL PROCEDURE

(1) evidence of a crime;

(2) contraband, fruits of crime, or other items illegally possessed;

(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 restrained.

(d) Obtaining a Warrant.

(1) In General. After receiving an affidavit or other information, 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 enforcement 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 suitable recording device, and the judge must file the transcript or recording with the clerk, along with any affidavit.

(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 communicated 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 warrant 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 execution at another time; and

(iii) return the warrant to the magistrate judge designated 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 specified, the warrant authorizes a later review of the media or

57 Rule 41 FEDERAL RULES OF CRIMINAL PROCEDURE

information consistent with the warrant. The time for executing 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 warrant must identify the person or property to be tracked,

designate the magistrate judge to whom it must be returned, 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 command the officer to:

(i) complete any installation authorized by the warrant within a specified time no longer than 10 days;

(ii) perform any installation authorized by the warrant 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 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.

(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 receipt at the place where the officer took the property. For

a warrant to use remote access to search electronic storage media and seize or copy electronically stored information, the officer must make reasonable efforts to serve a

copy of the warrant and receipt on the person whose property 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 inventory—to the magistrate judge designated on the warrant.

The officer may do so by reliable electronic means. The

58 Rule 41 FEDERAL RULES OF CRIMINAL PROCEDURE

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-device 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 officer 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 magistrate 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 unlawful search and seizure of property or by the deprivation of property 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 motion. 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 evidence 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.)

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