Amendments to North Dakota Rules as Adopted

Amendments to North Dakota Rules as Adopted - 20120300

N.D.R.Crim.P.

RULE 41. SEARCH AND SEIZURE

(a) Authority to issue a warrant. A state or federal magistrate acting within or for the territorial jurisdiction where the property or person sought is located, or from which it has been removed, may issue a search warrant authorized by this rule.

(b) Persons or property subject to search and seizure. A warrant may be issued for any of the following:

(1) property that constitutes evidence of a crime;

(2) contraband, the fruits of crime, or things criminally possessed;

(3) property designed or intended for use, or which is or has been used as the means of, committing a crime;

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

(1) Warrant on affidavit or sworn recorded testimony.

(A) In general. A warrant other than a warrant on oral testimony under Rule 41 (c)(2) may issue only on an affidavit or affidavits sworn to or sworn recorded testimony taken before a state or federal magistrate and establishing the grounds for issuing the warrant.

(B) Examination. Before ruling on a request for a warrant, the magistrate may require the affiant or other witnesses to appear personally and may examine under oath the affiant and any witnesses the affiant may produce. This examination must be recorded and made part of the proceedings.

(C) Probable cause. If the state or federal magistrate is satisfied that grounds for the application exist or that there is probable cause to believe they exist, the magistrate must issue a warrant identifying the property or person to be seized and naming or describing with particularity the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part.

(D) Command to search. The warrant must be directed to a peace officer authorized to enforce or assist in enforcing any law of this state. It must command the officer to search, within a specified period of time not to exceed ten days, the person or place named for the property or person specified.

(E) Service and return. The warrant must be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime. It must designate a state or federal magistrate to whom it must be returned.

(2) Warrant ~~on remote communication~~ by Telephonic or Other Reliable Electronic Means.

~~(A) In general. When reasonable under the circumstances, a state or federal magistrate may issue a warrant based on sworn oral testimony communicated by telephone or other appropriate means.~~

(B) Application. The person requesting the warrant must prepare a duplicate original warrant and must read the duplicate original warrant, verbatim, to the magistrate. The magistrate must enter, verbatim, what is so read to the magistrate on the original warrant. The magistrate must direct the warrant to be modified.

(C) Issuance. If the magistrate is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, the magistrate must order the issuance of a warrant by directing the person requesting the warrant to sign the magistrate's name on the duplicate original warrant. The magistrate must immediately sign the original warrant and enter on the face of the original warrant the date and time when the warrant was ordered to be issued. The finding of probable cause for a warrant on oral testimony may be based on the same kind of evidence as is sufficient for a warrant on affidavit.

(D) Recording and certifying testimony. If a caller informs the magistrate that the purpose of the call is to request a warrant, the magistrate must immediately place under oath each person whose testimony forms the basis of the application and each person applying for that warrant. If a voice recording device is available, the magistrate must use the device to record the call. Otherwise a stenographic or longhand verbatim record must be made. If a longhand verbatim record is made, the magistrate must file a signed copy with the court.

~~(E) Contents. The contents of a warrant on oral testimony are the same as the contents of a warrant on affidavit.~~

~~(F) Additional rules for execution. The person who executes the warrant must enter the exact time of execution on the face of the duplicate original warrant.~~

(G) Motion to suppress precluded. Absent a finding of bad faith, evidence obtained under a warrant issued under Rule 41 (c)(2) is not subject to a motion to suppress on the ground that it was not reasonable under the circumstances to issue the warrant on oral testimony.

~~(3) Warrant by electronic transmission.~~

~~(A) General rule. An affidavit in support of a warrant may be submitted by electronic transmission. A warrant may be transmitted by electronic transmission.~~

(B) Application. The magistrate must orally administer the oath or affirmation to the affiant over the telephone. The affiant must sign the affidavit and submit the affidavit to the magistrate by electronic transmission. An affidavit sworn to a magistrate over the telephone is sworn to before a magistrate for the purposes of Rule 41(c).

(C) Issuance. The magistrate must note on the warrant the date and time of issuance of the warrant, and indicate on the warrant that the supporting affidavit was sworn to over the telephone. The electronic transmission has the same effect as the original.

~~(D) Execution. The person who executes the warrant must enter the date and time of the execution on the face of the warrant.~~

In accordance with Rule 4.1, the magistrate may issue a warrant based on information communicated by telephone or other reliable electronic means.

~~(4)~~ (3) Warrant seeking electronically stored information. A warrant under Rule 41(c) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.

(d) Execution and return with inventory.

(1) Execution. The person who executes the warrant must enter the date and time of the execution on the face of the warrant.

~~(1)~~ (2) Inventory. An officer present during the execution of the warrant must prepare and verify an inventory of any property seized. The officer must do so in the presence of the applicant for the warrant and the person from whom, or from whose premises, the property was taken. If either one is not present, the officer must prepare and verify the inventory in the presence of at least one other credible person. In a case involving the seizure of electronic storage media or the seizure or copying of electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied. The officer may retain a copy of the electronically stored information that was seized or copied.

~~(2)~~ (3) Receipt. The officer taking property under the warrant must:

(A) give a copy of the warrant and a receipt for the property taken to the person from whom or from whose premises the property was taken; or

(B) leave a copy of the warrant and receipt at the place from which the officer took the property.

~~(3)~~ (4) Return. The officer executing the warrant must promptly return it--together with a copy of the inventory--to the magistrate designated on the warrant. The officer may do so by reliable electronic means. The magistrate on request must give a copy of the inventory to the person from whom, or from whose premises, the property was taken and to the applicant for the warrant.

(e) Motion for return of property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move the trial court for the property's return. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the moving party, although the court may impose reasonable conditions to protect access and use of the property in later proceedings. If a motion for return of property is made or heard after an indictment, information, or complaint is filed, it must be treated also as a motion to suppress under Rule 12.

(f) Motion to suppress. A motion to suppress evidence may be made in the trial court as provided in Rule 12.

(g) Return of papers to clerk. The magistrate to whom the warrant is returned must attach to the warrant a copy of the return, inventory and all other related papers and must file them with the clerk of the trial court.

(h) Scope and definitions.

(1) Scope. This rule does not modify any statute regulating search or seizure, or the issuance and execution of a search warrant in special circumstances.

(2) Definitions. The following definitions apply under this rule:

(A) "Property" includes documents, books, papers and any other tangible objects.

(B) "Daytime" means the hours from 6:00 a.m. to 10:00 p.m. according to local time.

EXPLANATORY NOTE Rule 41 was amended, effective September 1, 1983; March 1, 1990; March 1, 1992; January 1, 1995; March 1, 2006; March 1, 2011; March 1, 2012; March 1, 2013.

Rule 41 is an adaptation of Fed.R.Crim.P. 41 and is designed to implement the provisions of Article I, Section 8, of the North Dakota Constitution and the Fourth Amendment to the United States Constitution, which guarantee, "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized." To implement this constitutional protection, an illegal search and seizure will bar the use of such evidence in a criminal prosecution. The suppression sanction is imposed in order to discourage abuses of power by law enforcement officials in conducting searches and seizures.

Subdivision (a) provides that a search warrant be issued by a magistrate, either state or federal, acting within or for the territorial jurisdiction. The provision which permits a federal magistrate to issue a search warrant is the reciprocal of the federal rule, which permits a state magistrate to issue a search warrant pursuant to a federal matter. It is contemplated that a search warrant will be issued by a federal magistrate only on the nonavailability of a state magistrate.

Subdivision (a) does not require that the individual requesting the search warrant be a law enforcement officer. There appears to be common-law support for the use of the search warrant as a means of getting an owner's property back. The primary purpose of the rule, however, is the authorization of a search in the interest of law enforcement and as a practical matter the request for issuance of a search warrant by someone other than a law enforcement officer is virtually nonexistent.

Subdivision (b) describes the property or persons which may be seized with a lawfully issued search warrant. Issuance of a search warrant to search for items of solely evidential value is authorized. There is no intention to limit the protection of the Fifth Amendment against compulsory self-incrimination, so items that are solely "testimonial" or "communicative" in nature might well be inadmissible on those grounds.

Paragraph (c)(1) follows the federal rule except that North Dakota's rule permits the issuance of a warrant on sworn recorded testimony without an affidavit. Probable cause for the issuance of a search warrant should be assessed under the totality-of-circumstances test.

The provision for examination of the affiant before the magistrate is intended to assure the magistrate an opportunity to make a careful decision as to whether there is probable cause based on legally obtained evidence. The requirement that the testimony be recorded is to insure an adequate basis for determining the sufficiency of the evidentiary grounds for the issuance of the search warrant if a motion to suppress is later filed.

The language of subparagraph (c)(1)(E), "for reasonable cause shown," is intended to explain the necessity for executing the warrant at a time other than the daytime. This provision is intended to be a substantive prerequisite to the issuance of a warrant that is to be executed at a time other than daytime, although it is not necessary that the quoted language ("for reasonable cause shown") be defined in subdivision (h).

Paragraph (c)(2) establishes a procedure for the issuance of a search warrant when it is not reasonably practicable for the person obtaining the warrant to present a written affidavit to a magistrate as required by paragraph (c)(1). A warrant may be issued on the basis of an oral statement of a person not in the physical presence of a magistrate. Telephone, radio, interactive television, or other electronic methods of communication are contemplated.

~~Subparagraph (c)(2)(D) was amended, effective March 1, 2006, to delete a sentence requiring immediate transcription of the record of a remote communication.~~

Paragraph (c)(3) was added, effective January 1, 1995, to provide for the issuance of warrants by facsimile transmission without the personal appearance of the affiant. Paragraph (c)(3) was amended, effective March 1, 2006, to substitute the term "electronic" for "facsimile." This change was intended to expand the means available for obtaining a warrant without the personal appearance of the affiant to include facsimile, e-mail, and other electronic transmission methods.

Former paragraphs (c)(2) and (c)(3) were deleted and a new paragraph (c)(2) was added, effective March 1, 2013, to allow the magistrate to issue a warrant based on information communicated by telephone or other reliable electronic means under the procedure set out in Rule 4.1.

Paragraph (c)~~(4)~~(3) was added and paragraph (d)(1) was amended, effective March 1, 2012, to provide guidelines for warrants authorizing the seizure of electronic storage media and electronically stored information and for the inventory of seized electronic material. The amendments were based on the December 1, 2009, amendments to Fed.R.Crim.P. 41.

Subdivision (d) is intended to make clear that a copy of the warrant and an inventory receipt for property taken shall be left at the premises at the time of the lawful search or with the person from whose premises the property is taken if he is present.

Paragraph (d)(4) was amended, effective March 1, 2013, to allow an officer to make a return by reliable electronic means.

Subdivision (e) requires that the motion for return of property be made in the trial court rather than in a preliminary hearing before the magistrate who issued the warrant. It further provides for a return of the property if: (1) the person is entitled to lawful possession, and (2) the seizure is illegal. However, property which is considered contraband does not have to be returned even if seized illegally. The last sentence of subdivision (e) provides that a motion for return of property, made in the trial court, shall be treated as a motion to suppress under N.D.R.Crim.P. 12. The purpose of this provision is to have a series of pretrial motions disposed of in a single appearance, such as at a Rule 17.1, Omnibus Hearing, rather than in a series of pretrial motions made on different dates causing undue delay in administration.

Subdivisions (a), (b), and (c) were amended in 1983, effective September 1, 1983, to add persons as permissible objects of search warrants. These amendments follow 1979 amendments to Fed.R.Crim.P. 41 and are intended to make it possible for a search warrant to issue to search for a person if there is probable cause to arrest that person; or that person is being unlawfully restrained.

Subdivisions (c) and (d) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.

Subdivision (e) was amended, effective March 1, 1992, to track the federal rule.

Rule 41 was amended, effective March 1, 2006, in response to the December 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

Sources: Joint Procedure Committee Minutes of January 26-27, 2012, pages 26-27; April 28-29, 2011, page 17; September 23-24, 2010, page 32; April 29-30, 2010, page 20, 25-26; April 28-29, 2005, pages 5-8; January 27-28, 2005, pages 33-34; April 28-29, 1994, pages 22-23; November 7-8, 1991, page 4; October 25-26, 1990, pages 15-16; April 20, 1989, page 4; December 3, 1987, page 15; October 15-16, 1981, pages 12-15; December 7-8, 1978, pages 23-26; October 12-13, 1978, pages 15-19; April 24-26, 1973, page 14; December 11-15, 1972, pages 31-37; November 18-20, 1971, pages 3-9; September 16-18, 1971, pages 11-32; March 12-13, 1970, page 3; November 20-21, 1969, pages 19-24; May 15-16, 1969, pages 21-23; Fed.R.Crim.P. 41.

Statutes Affected:

Superseded: N.D.C.C. §§ 29-29-02, 29-29-03, 29-29-04, 29-29-05, 29-29-06, 29-29-07, 29-29-10, 29-29-11, 29-29-12, 29-29-13, 29-29-14, 29-29-15, 29-29-16, 29-29-17.

Considered: N.D.C.C. §§ 12-01-04(12), 12-01-04(13), 29-01-14(3), 29-29-01, 29-29-08, 29-29-09, 29-29-18, 29-29-19, 29-29-20, 29-29-21, 31-04-02. N.D.C.C. ch. 28-29.1. N.D.C.C. ch.19-03.1.

Cross References: N.D.R.Crim.P. 4.1 (Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic Means); N.D.R.Crim.P. 12 (Pleadings and Pretrial Motions); N.D.R.Crim.P. 17.1 (Omnibus Hearing and Pretrial Conference); N.D.R.Ct. 2.2 (Facsimile Transmission); N.D. Sup. Ct. Admin. R. 52 (Interactive Television).