Warrant to search third-party residence to effect an arrest

home of a third party, can a search warrant be obtained to search the residence of the third party for It is the opinion of this Office that a magistrate may issue a search warrant to search for a person in order to arrest them, provided there is probable cause to effect an arrest. The warrant may While search warrants have traditionally been issued for the seizure of physical items, Rule 41, Tennessee Rules of Criminal Procedure, allows the issuance of a search warrant for persons as any person for whose arrest there is probable cause. Rule 41(b)(4) permits a search warrant to issue to effect an arrest where required by the decision in Steagald v. United States, 451 U.S. 204 (1981). Court held that law enforcement officers are required to obtain a search warrant before entering the search warrant to search a third-party residence for a person wanted on an arrest warrant, so long as S T A T E O F T E N N E S S E E OFFICE OF THE ATTORNEY GENERAL 425 FIFTH AVENUE NORTH NASHVILLE, TENNESSEE 37243 July 17, 2000 Opinion No. 00-121 Warrant to search third-party residence to effect an arrest QUESTION When law enforcement officers believe that a person wanted on an arrest warrant is in the home of a third party, can a search warrant be obtained to search the residence of the third party for the individual named in the warrant? OPINION It is the opinion of this Office that a magistrate may issue a search warrant to search for a person in order to arrest them, provided there is probable cause to effect an arrest. The warrant may authorize a search of a third-party residence for such a person, so long as a magistrate makes the determination that probable cause exists to believe that the person to be seized is within that residence. ANALYSIS While search warrants have traditionally been issued for the seizure of physical items, Rule 41, Tennessee Rules of Criminal Procedure, allows the issuance of a search warrant for persons as well. Rule 41(b)(4) specifically provides that a search warrant may be issued to search for and seize any person for whose arrest there is probable cause. Rule 41(b)(4) permits a search warrant to issue to effect an arrest where required by the decision in Steagald v. United States, 451 U.S. 204 (1981). Tenn. R. Crim. P. 41, Advisory Commission Comments. In Steagald, the United States Supreme Court held that law enforcement officers are required to obtain a search warrant before entering the home of a third party to arrest an individual. Absent exigent circumstances, a magistrate must make the decision that probable cause exists to believe that the person to be seized is within a particular place. 451 U.S. at 214. Accordingly, it is the opinion of this Office that Rule 41, Tenn. R. Crim. P., authorizes a search warrant to search a third-party residence for a person wanted on an arrest warrant, so long as the issuing magistrate determines that probable cause exists to believe the person is within the residence. PAUL G. SUMMERS Attorney General and Reporter MICHAEL E. MOORE Solicitor General J. ROSS DYER Assistant Attorney General Requested by: William L. Gibbons District Attorney General Shelby County Justice Center 201 Poplar - Suite 301 Memphis, TN 38103-1947