RULE 9. WARRANT OR SUMMONS UPON INDICTMENT OR INFORMATION
1 (a) Issuance. The court must issue an arrest warrant for each defendant
2 named in the indictment or information, if it is supported by a showing of probable
3 cause as required in Rule 4(a). The court need not issue a warrant for any
4 defendant who has been held to answer for any offense charged. After a showing
5 of probable cause, the court may issue a summons instead of a warrant on its own
6 motion or at the request of the prosecuting attorney. On like request or on its own
7 motion, the court may issue more than one warrant or summons for the same
8 defendant. The court must issue the arrest warrant or summons to the sheriff or
9 other person authorized by law to execute or serve it. If a defendant fails to appear
10 in response to a summons, the court must issue a warrant.
11 (b) Form.
12 (1) Warrant. The warrant must conform to Rule 4(b)(1), describe the
13 offense charged in the indictment or information, and command that the defendant
14 be arrested and brought before the court. The court may fix the amount of bail and
15 endorse it on the warrant.
16 (2) Summons. The summons must be in the same form as a warrant except
17 that it must require the defendant to appear before the court at a stated time and
19 (c) Execution or Service; and Return.
20 (1) Execution or Service. The warrant must be executed or the summons
21 served as provided in Rule 4(c)(1) and (2).
22 (2) Return. A warrant or summons must be returned in accordance with
23 Rule 4(d).
24 (d) Warrant or Summons by Telephone or Other Means. In accordance with
25 Rule 4.1, the magistrate may issue a warrant or summons based on information
26 communicated by telephone or other reliable electronic means.
27 EXPLANATORY NOTE
28 Rule 9 was amended, effective March 1, 2006; March 1, 2013. The
29 explanatory note was amended effective March 1, 2017.
30 Rule 9 is an adaptation of Fed.R.Crim.P. 9, and provides for the issuance of
31 a warrant or summons upon indictment or information. The Fourth Amendment
32 provides that "no Warrants shall issue, but upon probable cause supported by oath
33 or affirmation, and particularly describing * * * persons * * * to be seized." If an
34 indictment has been returned, the Fourth Amendment is satisfied and the warrant
35 can issue on request without more, since the indictment is made on the oath of the
36 grand jury. The provision for showing of the "probable cause" as required in Rule
37 4(a) makes explicit the fact that a warrant or summons can issue on the basis of an
38 information only if the information or affidavit filed with the information shows
39 probable cause for the arrest warrant or summons. Generally, prosecution on
40 information has as a prerequisite a determination of probable cause at a
examination hearing. Exceptions are listed
in N.D.C.C. §
42 Subdivision (b) incorporates by reference the provisions of Rule 4(b)
43 concerning the form of the warrant or summons. The minor additional
44 requirements of this rule reflect the different stage in the proceeding at which the
45 warrant or summons is being issued. The amount of bail may be fixed by the court
46 and endorsed on the warrant. See Rule 46 (Release from Custody).
47 Paragraph (c)(1) incorporates by reference portions of Rule 4(c) dealing
48 with the execution of a warrant and service of a summons.
49 Paragraph (c)(2), dealing with return, is virtually the same as Rule 4(d),
50 providing for return of a warrant or summons issued on the complaint. At the
51 request of the prosecuting attorney, any unexecuted warrant must be returned and
52 canceled. On or before the return day, the person to whom a summons was
53 delivered for service must make a return to the court.
54 Subdivision (d) was added, effective March 1, 2013, to allow the magistrate
55 to issue a warrant or summons based on information communicated by telephone
56 or other reliable electronic means under the procedure set out in Rule 4.1.
57 Rule 9 was amended, effective March 1, 2006, in response to the December
58 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and
59 organization of the rule were changed to make the rule more easily understood and
60 to make style and terminology consistent throughout the rules.
61 SOURCES: Joint Procedure Committee Minutes of May 12-13, 2016, page
62 29; April 26-27, 2012, pages 9-10; January 26-27, 2012, page 26; January 29-30,
63 2004, page 26; March 23-25, 1972, pages 16-20; May 15-16, 1969, page 7; May
64 3-4, 1968, page 7; Fed.R.Crim.P. 9.
65 STATUTES AFFECTED:
66 SUPERSEDED: N.D.C.C. §§ 29-12-03, 29-12-04, 29-12-06, 29-12-08.
67 CROSS REFERENCES: N.D.R.Crim.P. 4 (Arrest Warrant or Summons
68 Upon Complaint); N.D.R.Crim.P. 4.1 (Complaint, Warrant, or Summons by
69 Telephone or Other Reliable Electronic Means); N.D.R.Crim.P. 46 (Release from
70 Custody); N.D.C.C. § 29-09-02 (Prosecution on Information--In what cases).