Rule 41. Search and Seizure
Rule 41. Search and Seizure
(a) Authority to Issue Warrant. A magistrate with jurisdiction in the county where the property sought is located may issue a search warrant authorized by this rule. The district attorney general, assistant district attorney general, criminal investigator, or any other law-enforcement officer may request a search warrant.
(b) Persons or Property Subject to Seizure by Warrant. A magistrate may issue a warrant under this rule to search for and seize any of the following:
(1) evidence of a crime;
(2) contraband, the fruits of crime, or items otherwise criminally possessed;
(3) property designed or intended for use, or that has been used in a crime;
(4) a person whose arrest is supported by probable cause; or
(5) a person who is unlawfully restrained.
(c) Issuance and Content of Warrant.
(1) Issuance. A warrant shall issue only on an affidavit or affidavits that are sworn before the magistrate and establish the grounds for issuing the warrant.
(2) Requesting a Warrant By Electronic Means. A magistrate may issue a warrant based on information communicated by telephone or other reliable electronic means. The proposed warrant, the signed affidavit, and accompanying documents may be transmitted by electronic facsimile transmission (fax) or by electronic transfer with electronic signatures to the magistrate, who may act upon the transmitted documents as if they were originals. If the warrant is being sought by electronic means rather than face-to-face, the warrant affidavit shall be sworn to or affirmed by administration of the oath by audio-visual means by the magistrate, and the examination of the affiant by the magistrate shall also be by audio-visual means; provided, the warrant affidavit shall be in writing and received by the magistrate prior to the administration of the oath and examination of the affiant. The affidavit with electronic signature received by the magistrate and the warrant approved by the magistrate, signed with electronic signature, shall be deemed originals. The magistrate shall facilitate the filing of the original warrant with the clerk of the court and shall take reasonable steps to prevent tampering with the warrant. The issuing magistrate shall retain a copy of the warrant as part of his or her official records. The issuing magistrate shall issue a copy of the warrant, with electronic signatures, to the affiant. This section does not alter the requirement that the affidavit be submitted to the magistrate in writing regardless of the means of transmission.
(3) Content. If the magistrate is satisfied that there is probable cause to believe that grounds for the application exist, the magistrate shall issue a warrant as follows:
(A) The warrant shall, as the case may be, identify the property or place to be searched, or name or describe the person to be searched; the warrant also shall name or describe the property or person to be seized.
(B) The search warrant shall command the law enforcement officer to search promptly the person or place named and to seize the specified property or person.
(C) The search warrant shall be directed to and served by:
(i) the sheriff or any deputy sheriff of the county where the warrant is issued; or
(ii) any constable or any other law enforcement officer with authority in the county.
(D) The magistrate shall endorse on the search warrant the hour, date, and name of the officer to whom the warrant was delivered for execution.
(4) Hearsay. The magistrate may base a finding of probable cause on hearsay evidence in whole or in part.
(d) Copies and Record of Warrant. The magistrate shall prepare an original and two exact copies of each search warrant. The magistrate shall keep one copy as a part of his or her official records. The other copy shall be left with the person or persons on whom the search warrant is served. The exact copy of the search warrant and the endorsement are admissible evidence.
(e) Procedures to Execute Warrant.
(1) Who May Execute. The search warrant may only be executed by the law enforcement officer, or one of them, to whom it is directed. Other persons may aid such officer at the officer’s request, but the officer must be present and participate in the execution.
(2) Authority for Forcible Entry. If, after notice of his or her authority and purpose, a law enforcement officer is not granted admittance, or in the absence of anyone with authority to grant admittance, the peace officer with a search warrant may break open any door or window of a building or vehicle, or any part thereof, described to be searched in the warrant to the extent that it is reasonably necessary to execute the warrant and does not unnecessarily damage the property.
(3) Timely Execution. The warrant must be executed within five days after its date.
(4) Leaving Copy of Warrant and Receipt. The officer executing the warrant shall:
(A) 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; or
(B) shall leave the copy and receipt at a place from which the property was taken.
(f) Procedures After Execution of Warrant.
(1) Return and Inventory. The officer executing the warrant shall promptly make a return, accompanied by a written inventory of any property taken. Upon request, the magistrate shall cause to be delivered a copy of the return and the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
(2) Documents to Court Clerk. Unless the property is directed to be restored under these rules, the magistrate shall transmit the executed original warrant with the officer’s return and inventory to the clerk of the court having jurisdiction of the alleged offense in respect to which the search warrant was issued.
(g) Motion for Return or Suppression of Property. A person aggrieved by an unlawful or invalid search or seizure may move the court pursuant to Rule 12(b) to suppress any evidence obtained in the unlawful search or seizure. If property was unlawfully seized, the aggrieved person may move for the return of the property. The motion to suppress and/or the motion to return property unlawfully seized, may be granted, under applicable substantive law and except as to the return of contraband, if the evidence in support of the motion shows that:
(1) the search or seizure was made illegally without a search warrant or illegally with an invalid search warrant, or in any other way in violation of the constitutional protection against unreasonable searches and seizures;
(2) a search warrant was relied on, but the search warrant or supporting affidavit is legally insufficient on its face and hence invalid;
(3) the search warrant relied on was issued on evidence consisting in material part of willful or reckless misrepresentations of the applicant to the issuing magistrate, resulting in a fraudulent procurement;
(4) the search warrant does not describe the property seized, and the seized property is not of such a character as to be subject to lawful seizure without a warrant;
(5) the magistrate did not:
(A) make an original and two copies of the search warrant; or
(B) did not endorse on the warrant the date and time of issuance and the name of the officer to whom the warrant was issued; or
(6) the serving officer–where possible–did not leave a copy of the warrant with the person or persons on whom the search warrant was served.
(h) Nonwaiver of Objection by Testimony of Defendant as to Illegally Obtained Evidence. A defendant does not waive the right to object to the admissibility of evidence if:
(1) inadmissible evidence obtained by an illegal search or seizure is erroneously introduced against the defendant; and
(2) the defendant subsequently testifies as to the same evidence but gives it an innocent or mitigating cast as to the charge and denies the charge.
[As amended by order filed January 2, 2015, effective July 1, 2015; and by order filed January 8, 2018, effective July 1, 2018.]
Advisory Commission Comments.
Rule 41(b) is intended to conform to Rule 41 of the Federal Rules of Criminal Procedure. Search warrants have traditionally been issued for the seizure of physical items. The Rule now allows for a search warrant for persons. For example, a search warrant is now available to search for a person who is kidnapped under circumstances where exigent circumstances might not justify a warrantless entry. The amendment also allows for a search warrant to effect an arrest where required by the decision in Steagald v. United States, 451 U.S. 204 (1981). The commission does not intend to suggest under what circumstances a search warrant is required to effect an arrest, but rather permits judicial authorization for a search warrant where required.
Property ordered suppressed or otherwise excluded from admission into evidence by any general sessions court or court exercising that jurisdiction shall not be returned to any owner or claimant over the objection of the district attorney general or his or her representative. The state must be free to pursue the prosecution to the next level, without being stripped of its evidence. The motion under subdivision (g) is meant to apply only to courts of record of general criminal trial jurisdiction such as Circuit and Criminal Courts.
Under subdivision (g)(1) the commission intended to say explicitly that the violation of any constitutional provision, such as a Fifth Amendment right, which results by operation of law in violation of the Fourth Amendment protection against unreasonable searches and seizures may be raised.
The provision of subdivision (h) is designed to change the rule of Lester v. State, 216 Tenn. 615, 393 S.W.2d 288 (1975), which often caused a defendant to waive one right by exercising another. Note that the provision applies only when the testifying defendant denies the charge.
Advisory Commission Comments 2015.
Subdivision (c) was amended by adding anew paragraph (2) (and renumbering what are now paragraphs (3) and (4)). New paragraph (c)(2) allows a search warrant to be obtained without requiring the affiant and the issuing magistrate to be in each other’s physical presence during the application/issuance process. The amendment to the rule does not alter the requirement that the affidavit be submitted to the magistrate in writing regardless of the means of transmission.
Advisory Commission Comments 2018.
The 2018 amendment removes the word “shall” and inserts “may” in the section of the rule regarding the exclusion of evidence, and makes Rule 41 more consistent with recent statutory changes, see 2011 Tenn. Pub. Acts. ch. 252 codified at Tenn. Code Ann. §40-6-108, and recent case law, see State v. Reynolds, 504 S.W.3d 283, 313 (Tenn. 2016) (recognizing a good-faith exception to the judicially created exclusionary rule, which permits the introduction of evidence obtained “when the law enforcement officers’ action is in objectively reasonable good faith reliance on binding appellate precedent that specifically authorizes a particular police practice“; see also State v. Tuttle, 515 S.W.3d 282, 308 (Tenn. 2017) (negligent mistakes in wording of search warrant insufficient to invalidate search warrant). In Reynolds, the Tennessee Supreme Court also clarified that Rule 41, a procedural rule, does not provide greater protection than applicable substantive law on the exclusionary rule and its exceptions. The amendment makes clear that this procedural rule does not take precedence over applicable substantive law related to the exclusionary rule and its exceptions.
