Objects of a Search Warrant

Rule 41 does not let a magistrate issue a warrant for any item an officer would like to examine. Subdivision (c) opens by saying a warrant may be issued for "any of the following" and then lists the kinds of property and persons that qualify.¹ The list is the outer boundary of what a federal warrant can reach, and an application that cannot be placed in one of its categories asks for something the rule does not authorize. The reason lies in what probable cause is. Probable cause is always a belief that a particular kind of thing is in a particular place, and a magistrate can weigh that belief only if the thing sought has a recognized claim on governmental attention. The list supplies that claim. It turns the magistrate's question into whether the sworn facts make it likely that an item of a listed type is where the officer says it is.

The rule also defines what counts as property. Under Rule 41(a)(2)(A), property includes documents, books, papers, any other tangible objects, and information.² The breadth of that definition matters because many investigations aim at records rather than at objects one can hold: ledgers, correspondence, and stored files. Bringing information within the definition means the same showing and the same warrant procedures govern the contents of a hard drive and the contents of a filing cabinet. The definition has widened over time. An earlier version of Rule 41, quoted in a footnote to Gooding v. United States, 416 U.S. 430 (1974), defined property as documents, books, papers, and other tangible objects, with no mention of information.³ That addition is what lets the framework reach digital and location data, which comes up near the end of this chapter.

The contrast shows that two separate questions are being asked. The definition of property settles only that an item can be a candidate for seizure, and the list decides whether it is one a warrant may reach. The category also matters for a practical reason, because it determines what the affidavit must connect: evidence must be tied to the crime under investigation, contraband must be shown to be illegal to possess, and so on. How the magistrate measures that showing is the subject of a later section. The categories come in the order the rule gives them, starting with evidence of a crime and continuing through contraband and fruits, instrumentalities, and finally persons, and each is taken in turn below.

Evidence of a Crime

Rule 41(c)(1) names the first and broadest object of a federal warrant: "evidence of a crime."⁵ Evidence in this sense is any item that helps show that an offense occurred or who committed it, so invoices, ledgers, and correspondence all qualify when the offense is fraud. The category looks to the item, whoever holds it. Records that prove one person's crime may sit in the office of an outside accountant who is suspected of nothing, and the category still reaches them if the affidavit gives reason to believe they are there.⁶

Because the category is so wide, it is the one most in need of a limit. Probable cause that a crime occurred is one showing, and probable cause that a particular item is evidence of that crime is another. For document searches, the second showing is where affidavits usually fail.⁷ The two have to stay separate because a showing of fraud alone would otherwise justify carrying away everything an investigator might find interesting, and the magistrate's job of fitting the search to the facts would disappear. The affidavit therefore has to connect each kind of item sought to the crime under investigation.

The only fact that moved the answer was how far the affidavit's connection extended. Students lose this issue when they treat probable cause that a crime occurred as authority to seize every record in the building.⁸ How the link is measured item by item and across a period of time is taken up in the probable-cause discussion below. The point to hold here is that the category exists and that its practical limit is the connection the sworn facts supply.

Contraband and Fruits

Rule 41(c)(2) names the second object of a federal warrant: "contraband, fruits of crime, or other items illegally possessed."¹⁰ The three phrases share a feature that separates this category from the evidence category just covered. Evidence is defined by what an item can prove, so the question there is whether the item helps show that an offense occurred or who committed it. Here the item's own status controls. Contraband is property the law forbids people to hold at all, such as illegal drugs or counterfeit currency. Fruits of crime are things acquired through an offense, such as stolen goods. The closing phrase catches any other item whose possession by the person who holds it is unlawful.

The reason for building a category around status is that the status itself explains why the government may take the item. A person has no lawful claim to hold contraband, and a thief has no rightful claim to the goods taken, so the government has no legitimate reason to leave either in the possessor's hands. A seizure of such property does not depend on showing that the item will help prove anything at trial. The same logic shows why lawful property needs a different footing. A person's own books, tools, and household goods can be seized only on some other basis, such as their value as evidence or their use in committing an offense. If dangerousness or general suspicion could stand in for status, any lawful item an officer found worrying could be swept into this category and the list in Rule 41(c) would stop limiting anything. The consequence for the affidavit is that it must supply the status fact. It must give the magistrate reason to believe the goods were stolen, or that the substance is illegal to possess, or that the holder has no right to the item.

The opposite pole comes from the materials in Groh v. Ramirez, where officers searching a home found weapons, ammunition, and explosive material.¹¹ In explaining why a warrant must itself state what the magistrate approved, the Court observed that the magistrate might have been satisfied that the search for weapons and explosives was justified, yet might also have believed that some of the weapons mentioned in the affidavit could have been lawfully possessed and therefore should not be seized. The Court noted that federal law requires registration of certain firearms without banning their possession.¹² That observation shows what the status test does for this category. A weapon is not contraband simply because it is a weapon, since lawful ownership of some firearms is common, and an application that lists weapons generally must show illegal possession or fit another category such as evidence or instrumentality. The full holding of that case concerns the particularity of the warrant itself, which a later section takes up.

The two rifles differ only in the facts about legal status, and that difference decides the result. The categories also overlap, which can mislead a reader into thinking one label excuses the others. Stolen goods that carry incriminating messages, for example, can be fruits of the crime and evidence of it at the same time, and the application may invoke both. The affidavit must still support whichever label it relies on, so a request framed as contraband needs facts about status, and a request framed as evidence needs facts connecting the item to the offense. Students lose this issue when they treat dangerousness as if it were the same fact as illegal possession.¹³

Instrumentalities of Crime

Rule 41(c)(3) names the third object of a federal warrant: property "designed for use, intended for use, or used in committing a crime."¹⁵ The three phrases reach a tool's connection to an offense at different moments. A thing designed for use was built for the criminal purpose, a thing intended for use is meant by its holder to serve that purpose, and a thing used in committing a crime has already served it. What unites them is function. Evidence is defined by what an item can prove, and contraband by the item's own legal status, but an instrumentality is defined by the role the item plays in carrying out the offense. A counterfeiter's printing press is an instrumentality of the counterfeiting, while the same counterfeiter's sales ledger is evidence of it.

The reason for reaching tools is practical. Taking the means of a crime out of the offender's hands prevents repetition, and the tools often show how the offense was carried out. Neither reason depends on the item being illegal, and that fact shapes what the affidavit must contain. Presses, vehicles, hand tools, and computers are lawful to own, so the item's nature tells the magistrate almost nothing about whether it belongs to a crime. The connection has to come from sworn facts about how the item was used, built, or meant to be used. If an item's nature could stand in for those facts, every lawful tool in a suspect's possession would qualify and the category would stop limiting anything. The phrase "intended for use" sharpens the point, because an item not yet used qualifies only when the affidavit shows the plan it was meant to serve.

The only fact that moved the answer was whether the sworn showing tied the item to the criminal purpose. The categories also overlap. The press shows how the counterfeiting was done, so it may be evidence as well as an instrumentality, and an application may invoke both labels. Each label still needs its own support, because a request framed as an instrumentality requires facts about function. Students lose this issue in either direction when they let the item's own nature decide the category, whether by assuming a lawful tool can never qualify or by assuming any tool near a crime does.¹⁶

Persons to Seize or Rescue

Rule 41(c)(4) names the fourth and last object of a federal warrant: "a person to be arrested or a person who is unlawfully restrained."¹⁸ The three categories before it each describe things, whether items that prove an offense, items that are forbidden or ill-gotten, or tools used to carry one out. This category alone reaches a human being. Its wording also divides into two parts that serve different goals. The first part is about apprehension, because the government wants to find a person it is entitled to take into custody. The second is about rescue, because the government wants to find a person held against their own will so that the person can be freed.

Locating a person is a different governmental interest from collecting objects, and the rule confines it to the two situations in which the state has an unusually strong reason to find someone. A lawful claim to custody explains the first part, and a victim's need to be freed explains the second. The narrow wording also does the same limiting work that the earlier categories do. If a warrant could issue for any person the police wished to find, the list in Rule 41(c) would stop restricting what officers may look for, and a magistrate would have no way to ask what the officers are really after. Because each part names a specific legal situation, the magistrate can ask whether the person sought is in that situation.

The boundary of the category appears when the officers' interest in a person is only informational. A witness is valuable for what the witness knows, and that interest is not one of the two situations the rule lists.

The flip shows that the category turns on the person's legal situation, however much the officers want to find them. Students lose this issue when they treat the police's wish to locate someone as if it were one of the two listed situations.¹⁹ The rules governing arrest warrants and the entry of homes to carry them out belong to the law of arrest, so this section asks only what the category covers. Fitting a category is also only the first requirement. For a person, as for a document or a firearm, the magistrate must still find probable cause that the thing sought is in the place to be searched, and how that showing is measured is the subject of the next section.