W.R.Cr.P. 41

(a) Scope and Definitions. —

(1) Scope. — This rule does not modify any law inconsistent with it,

regulating search, seizure and the issuance and execution of search war-

rants in circumstances for which special provision is made.

(2) Definitions. — The following definitions apply under this rule.

(A) “Property” includes documents, books, papers, any other tangible

objects and information.

(B) “Tracking device” means an electronic or mechanical device which

permits the tracking of the movement of a person or object.

(b) Authority to issue warrant. — Upon the request of the attorney for the

state or a federal, state, or local peace officer, a search warrant authorized by

this rule may be issued by a judicial officer. If issued by a judicial officer other

than a district or circuit judge it shall be by a judicial officer for the jurisdiction

wherein the property sought is located.

(c) Property or persons which may be seized with 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;

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

(3) Property designed or intended for use or which is or has been used as

the means of committing a criminal offense; or

(4) Person for whose arrest there is probable cause, or who is unlawfully

restrained.

(d) Issuance of warrant. — A warrant shall issue on an affidavit sworn to

before a person authorized by law to administer oaths and establishing the

grounds for issuing the warrant. If the judicial officer is satisfied that the

grounds for the application exist or that there is probable cause to believe that

they exist, the judicial officer shall issue a warrant particularly identifying the

property or person to be seized and naming or describing the person or place to

be searched. Before ruling on a request for a warrant the judicial officer may

require the applicant to appear personally and may examine under oath the

applicant and any witnesses the applicant may produce, provided that such

proceeding shall be taken down by a court reporter or recording equipment and

made part of the affidavit. The following additional rules may apply:

(1) Warrant on Sworn Testimony. — The judicial officer may wholly or

partially dispense with a written affidavit and base a warrant on recorded

sworn testimony, which record shall be preserved as if in writing.

(2) Recording Testimony. — Testimony taken in support of a warrant must

be preserved by a court reporter or by recording device.

(3) Requesting a Warrant by Telephonic or Other Reliable Electronic

Means. — A judicial officer may issue a warrant based on information

communicated by telephone or other reliable electronic means.

(4) Procedures for Telephonic or Electronic Warrant. — If a judicial officer

proceeds under this rule, the following procedures apply:

(A) Taking Testimony Under Oath. — The judicial officer must place

under oath—and may examine—the applicant and any person on whose

testimony the application is based.

(B) Testimony Limited to Attestation. — If the applicant does no more

than attest to the contents of a written affidavit submitted by reliable

electronic means, the judicial officer must acknowledge the attestation in

writing on the affidavit.

(C) Preparing a Proposed Duplicate Original of a Warrant. — The

applicant must prepare a proposed duplicate original of a warrant and

must read or otherwise transmit its contents verbatim to the judicial

officer.

(D) Preparing an Original Warrant. — If the applicant reads the

contents of the proposed duplicate original, the judicial officer must enter

those contents into an original warrant. If the applicant transmits the

contents by reliable electronic means, the transmission received by the

judicial officer may serve as the original.

(E) Modification. — The judicial officer may modify the warrant. The

judicial officer must then:

(i) transmit the modified version to the applicant by reliable electronic means; or

(ii) file the modified original, and direct the applicant to modify the

proposed duplicate original accordingly.

(e) Contents of Warrant. — The warrant shall be directed to any peace officer

authorized to enforce or assist in enforcing the state law. It shall state the

grounds or probable cause for its issuance and the names of the persons whose

affidavits have been taken in support thereof. It shall designate the judicial

officer to whom it shall be returned.

(1) 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 a

judicial officer to whom it must be returned. The warrant must command the

peace officer to:

(A) initiate execution of the warrant within a specified time not to

exceed 10 days;

(B) execute the warrant during the hours of 6:00 a.m. to 10:00 p.m.,

unless the judicial officer for good cause expressly authorizes, in the

warrant, execution at another time.

(2) Warrant Seeking Electronically Stored Information. — A warrant

under Rule 41(e)(1) 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 in Rule

41(e)(1) 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.

(3) Warrant for a Tracking Device. — A tracking device warrant must

identify the person or property to be tracked, designate a judicial officer 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 warrant must command the peace officer to:

(A) complete any installation authorized by the warrant within a

specified time not to exceed 10 days;

(B) perform any installation authorized by the warrant during the

hours of 6:00 a.m. to 10:00 p.m., unless the judicial officer for good cause

expressly authorizes, in the warrant, execution at another time; and

(C) return the warrant to the judicial officer designated in the warrant.

(f) Execution of warrant and return with inventory. —

(1) Warrant to Search for and Seize a Person or Property. —

(A) Noting the Time. — The peace officer executing the warrant must

enter on it the exact date and time it was executed.

(B) Inventory. — A peace office present during the execution of the

warrant must prepare and verify an inventory of any property seized. The

peace officer must do so in the presence of another peace officer and the

person from whom, or from whose premises, the property was taken. The

inventory shall be made in the presence of the applicant for the warrant

and the person from whose possession or premises the property was taken,

if they are present, or in the presence of at least one credible person other

than the applicant for the warrant or the person from whose possession or

premises the property was taken, and shall be verified by the officer. 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

peace officer may retain a copy of the electronically stored information that

was seized or copied. If the warrant is self-executing by the person or

entity believed to be in possession of the electronically stored information,

the warrant shall be considered to have been executed on the date of its

transmission to the person or entity. Within 5 days of receiving the

information sought in a self-executing warrant the peace officer executing

the warrant must make a return to the judicial officer designated in the

warrant.

(C) Receipt. — The peace 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.

(D) Return. — The peace officer executing the warrant must promptly

return it within five days of seizing the property — together with a copy of

the inventory — to the judicial officer designated on the warrant. The

peace officer may do so by reliable electronic means. The judicial officer

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 peace 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 5 days after the use of the tracking device has

ended, the peace officer executing the warrant must file a return to the

judicial officer designated in the warrant. The peace officer may do so by

reliable electronic means.

(C) Service. — Within 10 days after the use of the tracking device has

ended, the peace 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 was tracked 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 the applicant demonstrating good cause, the judicial officer may delay notice as provided in Rule

41(f)(3), below.

(3) Delayed Notice. — Upon the applicant demonstrating good cause, a

judicial officer may delay any notice required by this rule for a reasonable

period of time to be noted on the warrant.

(g) Motion for return of property. — A person aggrieved by an unlawful

search and seizure or by the deprivation of property may move the court in

which charges are pending or if charges have not been filed the court from

which the warrant issued 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 criminal charges have been filed, it shall be treated also as

a motion to suppress under Rule 12.

(h) Filing of papers with clerk. — The judicial officer designated to receive

the return shall attach to the warrant the copy of the return, inventory and all

of the papers in connection therewith and shall file them with the clerk of the

district or circuit court in the county in which the property was seized.

(i) Motion to suppress. — A motion to suppress evidence may be made in the

court where the case is to be tried as provided in Rule 12.

(j) Confidentiality of information. — All information filed with the court for

the purpose of securing a warrant for a search, including but not limited to an

application, affidavits, papers and records, shall be a confidential record until

such time as a peace officer has executed the warrant and has made return

thereon. During the period of time the information is confidential, it shall be

sealed by the court, and the information contained therein shall not be

disseminated to any person other than a peace officer, judge, court commissioner or another court employee, in the course of official duties.