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Tennessee Rules of Criminal Procedure, Rule 41

RULE 41. SEARCH AND SEIZURE

(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a magistrate with jurisdiction within the county wherein the property sought is located, upon request of the district attorney general or assistant or criminal investigator, or any other law enforcement officer.

(b) Property 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 committing a criminal offense; or

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

(c) Issuance; Contents; Copies; Failure to Comply. A warrant shall issue only on an affidavit or affidavits sworn to before the magistrate and establishing the grounds of issuing the warrant. If the magistrate is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, the magistrate shall issue a warrant identifying the property 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. The search warrant shall be directed to and served by the sheriff or any deputy sheriff of the county wherein issued, any constable, or any other peace officer with authority in the county. The search warrant shall command the peace officer to search forthwith the person or place named for the property specified. The magistrate shall prepare an original and two exact copies of the search warrant, one of which shall be kept by the magistrate as a part of his or her official records, and one of which shall be left with person or persons on whom the search warrant is served. The magistrate shall endorse upon the search warrant the hour, date, and name of the officer to whom the warrant was delivered for execution; and the exact copy of the search warrant and the endorsement thereon shall be admissible evidence. Failure of the magistrate to make said original and two copies of the search warrant or failure to endorse thereon the date and time of issuance and the name of the officer to whom issued, or the failure of the serving officer where possible to leave a copy with the person or persons on whom the search warrant is being served, shall make any search conducted under said search warrant an illegal search and any seizure thereunder an illegal seizure.

(d) Execution and Return With Inventory. The search warrant may only be executed by the peace officer, or one of them, to whom it is directed, and by no other person, except in aid of such officer, at the officer's request, he or she being present and acting in its execution. The warrant must be executed within five days after its date. The officer 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 the copy and receipt at a 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 magistrate shall, upon request, 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. The magistrate shall, if the property is not directed to be restored under these rules, 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.

(e) Authority to Break In. If after notice of authority and purpose a peace officer is not granted admittance, or in the absence of anyone with authority to grant admittance, a 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.

(f) 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 such unlawful search or seizure. If property was unlawfully seized, the aggrieved person may move for the return of the property; and the motion shall be granted, 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; or

(2) a search warrant was relied upon, but the search warrant or supporting affidavit is legally insufficient on its face and hence invalid; or

(3) the search warrant relied upon was issued upon evidence consisting in material part of willful or reckless misrepresentations of the applicant to the issuing magistrate, resulting in a fraudulent procurement; or

(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.

(g) Non-waiver of Objection by Testimony of Defendant as to Illegally Obtained Evidence. If inadmissible evidence obtained by an illegal search or seizure is erroneously permitted to be introduced against a defendant, and if 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, such testimony of the defendant shall not be deemed to be a waiver of the right to object to the admissibility of such evidence.

[Amended effective August 22, 1984.]

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Committee Comment

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 subsection (f) is meant to apply only to courts of record of general criminal trial jurisdiction such as Circuit and Criminal Courts.

Under subsection (f)(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 subsection (g) is designed to change the rule of Lester v. State, 216 Tenn. 615, 393 S.W.2d 288 (1965), 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.

Comment to 1984 Amendment

The amendment to 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 amendment allows for a search warrant for persons. Therefore, 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.

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