Authority of Military Investigators to Request Search Warrants Under Rule 41

Headnotes: 

There is no legal impediment to the Attorney General’s amending 28 C.F.R. § 60.2(g) to add military members of Department of Defense investigative agencies to the list of law enforcement officers authorized to seek and execute search warrants pursuant to Rule 41 of the Federal Rules of Civil Procedure.

The Posse Comitatus Act does not prohibit the issuance of search warrants to military investigators engaged in the enforcement of the Uniform Code of Military Justice (UCMJ), since that statute only restricts military involvement in civilian law enforcement activities.

Military investigators engaged in the enforcement of the UCMJ may be regarded as “federal law enforcement officers” within the scope of Rule 41, and federal magistrates would thus be authonzed to issue civilian search warrants to them upon the appropriate amendment of 28 C.F.R. § 60.2(g).

Updated July 9, 2014