RULE 41. SEARCH AND SEIZURE
(a) 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, any other tangible objects and information.
(B) "Daytime" means the hours between 6:00 a.m. and 10 p.m. according to local time.
(a) (b) Authority to Issue a Warrant. A search warrant authorized by this rule may be issued by a state or federal magistrate acting within or for the territorial with jurisdiction wherein in the county where the property or person sought is located or from which where it has been was removed, has authority to issue a search warrant. (b) (c) Property or Persons Which May be Seized With a Warrant Subject to Search or Seizure. A warrant may be issued under this rule to search for and seize any of the following: (i) (1) property that constitutes evidence of the commission of a criminal offense crime; or (ii) (2) contraband, the fruits of crime, or things otherwise criminally other items illegally possessed; or (iii) (3) property designed or for use, intended for use, or which is or has been used as the means of in committing a criminal offense crime; or (iv) (4) a person for whose arrest there is probable cause to be arrested, or a person who is unlawfully restrained. (c) (d) Issuance and Contents Obtaining a Warrant.
(1) Probable Cause. After receiving an affidavit or other information, a magistrate must issue the warrant if there is probable cause to search for and seize a person or property under Rule 41(c).
(1) (2) Requesting a Warrant Upon Affidavit or Sworn Recorded Testimony in the Presence of a Magistrate. A warrant other than a warrant upon oral testimony under subdivision (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. 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 shall 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. 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, but proceedings must be recorded by a court reporter or recording equipment and made part of the proceedings. 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. The warrant may 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 may designate a state or federal magistrate to whom it must be returned.
(A) Warrant on an Affidavit. When an applicant presents an affidavit in support of a warrant, the magistrate may require the affiant to appear personally and may examine under oath the affiant and any witness the affiant produces.
(B) Warrant on Sworn Testimony. The magistrate may wholly or partially dispense with a written affidavit and base a warrant on sworn testimony if doing so is reasonable under the circumstances.
(C) Recording Testimony. Testimony taken in support of a warrant must be recorded and the magistrate must file the transcript or recording with the clerk, along with any affidavit.
(2) (3)Warrant Upon Remote Communication. (i) (A) In General Rule. If the circumstances make it reasonable to dispense with the requisites of paragraph (1) for the issuance of a warrant, a state or federal A magistrate may issue a warrant based upon sworn oral testimony on information communicated by telephone or other appropriate means including facsimile transmission. (ii) (B) Application Recording Testimony. The person who is requesting the warrant shall prepare a document to be known as a duplicate original warrant and shall read the duplicate original warrant, verbatim, to the magistrate. The magistrate shall enter, verbatim, what is so read to the magistrate on a document to be known as the original warrant. The magistrate may direct that the warrant be modified. Upon learning that an applicant is requesting a warrant, a magistrate must:
(i) place under oath the applicant and any person on whose testimony the application is based; and
(ii) make a verbatim record of the conversation with a suitable recording device, if available, or by a court reporter or recorder, or in writing.
(iii) (C) Issuance Certifying Testimony. If the magistrate is satisfied that the circumstances are such as to make it reasonable to dispense with the requisites of paragraph (1) for the issuance of a warrant and that grounds for the application exist or that there is probable cause to believe that they exist, the magistrate shall 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 shall 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 upon oral testimony may be based on the same kind of evidence as is sufficient for a warrant upon affidavit. The magistrate must have any recording or court reporter's notes transcribed, certify the transcription's accuracy, and file a copy of the record and the transcription with the clerk. Any written verbatim record must be signed by the magistrate and filed with the clerk. (iv) (D) Recording and Certification of Testimony Suppression Limited. If a caller informs the magistrate that the purpose of the call is to request a warrant, the magistrate shall 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 shall record by means of the device all of the call after the caller informs the magistrate that the purpose of the call is to request a warrant. Otherwise a stenographic or longhand verbatim record must be made. If a voice recording device is used or a stenographic record made, the magistrate shall have the record transcribed, shall certify the accuracy of the transcription, and shall file a copy of the original record and the transcription with the court. If a longhand verbatim record is made, the magistrate shall file a signed copy with the court. Absent a finding of bad faith, evidence obtained from a warrant issued under Rule 41(d)(3)(A) is not subject to suppression on the ground that issuing the warrant in that manner was unreasonable under the circumstances. (v) Contents. The contents of a warrant upon oral testimony are the same as the contents of a warrant upon affidavit. (vi) Additional Rules for Execution. The person who executes the warrant shall enter the exact time of execution on the face of the duplicate original warrant. (vii) Motion to Suppress Precluded. Absent a finding of bad faith, evidence obtained pursuant to a warrant issued under this subdivision is not subject to a motion to suppress on the ground that the circumstances were not such as to make it reasonable to dispense with the requisites of paragraph (1) for the issuance of a warrant. (3) Warrant by Facsimile Transmission. (i) General Rule. An affidavit in support of the issuance of a warrant may be submitted by facsimile transmission. A warrant may be transmitted by facsimile transmission. (ii) Application. The magistrate shall orally administer the oath or affirmation to the affiant over the telephone. The affiant shall sign the affidavit and submit the affidavit to the magistrate by facsimile transmission. An affidavit sworn to a magistrate over the telephone under this paragraph is sworn to before a magistrate for the purposes of subdivision (c). (iii) Issuance. The magistrate shall note on the warrant the date and time of issuance of the warrant, and indicate on the warrant that the warrant was sworn to over the telephone. The facsimile duplicate of the original has the same effect as the original. (iv) Execution. The person who executes the warrant shall enter the date and time of execution on the face of the facsimile warrant.
(e) Issuing the Warrant.
(1) In General. The magistrate must issue the warrant to an officer authorized to execute it.
(2) Contents of the Warrant. The warrant must identify the person or property to be searched, identify any person or property to be seized, and designate the magistrate to whom it must be returned. The warrant must command the officer to:
(A) execute the warrant within a specified time no longer than 10 days;
(B) execute the warrant during the daytime, unless the magistrate for good cause expressly authorizes execution at another time; and
(C) return the warrant to the magistrate designated in the warrant.
(3) Warrant by Telephonic or Other Means. If a magistrate decides to proceed under Rule 41(d)(3)(A), the following additional procedures apply:
(A) Preparing a Proposed Duplicate Original Warrant. The applicant must prepare a "proposed duplicate original warrant" and must read or otherwise transmit the contents of that document verbatim to the magistrate.
(B) Preparing an Original Warrant. The magistrate must enter the contents of the proposed duplicate original warrant into an original warrant.
(C) Modifications. The magistrate may direct the applicant to modify the proposed duplicate original warrant. In that case, the magistrate must also modify the original warrant.
(D) Signing the Original Warrant and the Duplicate Original Warrant. Upon determining to issue the warrant, the magistrate must immediately sign the original warrant, enter on its face the exact time it is issued, and direct the applicant to sign the magistrate's name on the duplicate original warrant.
(d) (f) Execution and Return with Inventory Executing and Returning the Warrant. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken, if that person is present, or, if not present, shall leave the copy and receipt at the place from which the property was taken. The return must be made promptly and must be accompanied by a written inventory of any property taken. The inventory must be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or, if not present, in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and must be verified by the officer. The magistrate upon request shall deliver 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.
(1) Noting the Time. The officer executing the warrant must enter on its face the exact date and time it is executed.
(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 another officer 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.
(3) Receipt. The officer executing 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 where the officer took the property.
(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 magistrate must, on request, 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) (g) Motion for to Return of Property.
(1) No Charges Pending. 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 of property on the ground of being entitled to lawful possession of the property. The motion must be filed in the county where the property was seized. The court shall must receive evidence on any factual issue of fact necessary to the decision of decide the motion. If it grants the motion is granted, the court must return the property must be returned to the movant, although but may impose reasonable conditions may be imposed to protect access to the property and its use of the property in subsequent later proceedings.
(2) Criminal Charges Pending. If a defendant makes a motion for return of property
is made or comes on for hearing in the trial court after an indictment, information, or complaint is filed, it must be brought in the court where the trial will occur and treated also as a motion to suppress under N.D.R.Crim.P. Rule 12. (f) (h) Motion to Suppress. A motion defendant may move to suppress evidence may be made in the court where the trial court as provided in will occur as N.D.R.Crim.P. Rule 12 provides. (g) (i) Return of Forwarding Papers Documents to the Clerk. The magistrate before to whom the warrant is returned shall must attach to the warrant a copy of the return, of the inventory and of all other papers in connection therewith related documents and shall file must deliver them with to the clerk of the trial court in the county where the property was seized. (h) Scope and Definition. This rule does not modify any act, inconsistent with it, regulating search, seizure and the issuance and execution of search warrants in circumstances for which special provision is made. The term "property" is used in the rule to include documents, books, papers and any other tangible objects. The term "daytime" is used in this rule to mean the hours from six o'clock a.m. to ten o'clock p.m. according to local time.
Rule 41 was amended, effective September 1, 1983; March 1, 1990; March 1, 1992; January 1, 1995; _______________.
Rule 41 is an adaptation of Fed.R.Crim.P. 41, and is designed to implement the provisions of Article I, Section 8
[former Section 18], 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, the United States Supreme Court in Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L.R.A. 1915B 834 (1914), declared that an illegal search and seizure barred the use of such has held that evidence gathered in an illegal search and seizure will be excluded 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) was amended, effective _______________, and deals with the scope of the rule and applicable definitions.
Subdivision (b) provides that a search warrant be issued by a magistrate, either
State state or Federal federal, acting within or for the territorial jurisdiction. The provision which permits a Federal federal magistrate to issue a search warrant is the reciprocal of the Federal Rule federal rule, which permits a State state magistrate to issue a search warrant pursuant to a Federal federal matter. It is contemplated that a search warrant will be issued by a Federal federal magistrate only upon the nonavailability of a State state magistrate.
(a) (b) does not require that the individual requesting the search warrant be a law enforcement officer. This is consistent with existing law because N.D.C.C. ch. 29-29 contains no requirement 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 (See Vern. Ann. Code, Code Crim. Proc., Art. 18.03 (1966) Texas). The primary purpose of the Rule 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.
(b) (c) describes the property or persons which that may be seized with a lawfully issued search warrant. The Rule rule applies the decision of Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967), which authorizes the issuance of a search warrant to search for items of solely evidential value. There is no intention to limit the protection of the Fifth Amendment against compulsory self-incrimination, so items which are solely "testimonial " or "communicative " in nature might well be inadmissible on those grounds. (Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966). See Advisory Committee Note to Federal Rule 41 (1972), H.D. 92-285, page 43.)
(c) (d) follows the Federal Rule federal rule and requires probable cause before a warrant may be issued. except that North Dakota's Rule permits the issuance of a warrant upon sworn recorded testimony without an affidavit. Probable cause for the issuance of a search warrant should be assessed under the totality-of-circumstances test adopted by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). State v. Ringquist, 433 N.W.2d 207, 213 (N.D. 1988).
The provision in subparagraph (d)(2)(A) for examination of the affiant before the magistrate is intended to assure the magistrate an opportunity to make a careful decision
as to about whether there is probable cause based upon legally obtained evidence. Subparagraph (d)(2)(B) permits the issuance of a warrant upon sworn testimony without an affidavit when this is reasonable under the circumstances. The requirement in subparagraph (d)(2)(C) that the testimony be recorded by a reporter, if available, and if no reporter is available, then by use of a recording device at the direction of the magistrate, 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 subdivision (c)(1), "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) of this Rule. Subdivision Paragraph (c)(2) (d)(3) 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 subdivision paragraph (c)(1) (d)(2). 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, or other electronic methods of communication are contemplated. Paragraph (d)(3) was added to subdivision (c), effective January 1, 1995, to provide for also allows the issuance of warrants by facsimile transmission without the personal appearance of the affiant.
The language of subparagraph (e)(2)(B), "for good cause," is intended to establish a substantive prerequisite to the issuance of a warrant to be executed at a time other than daytime.
(d) (f) 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. Subdivision (e) Paragraph (g)(1) requires that the allows a motion for return of property to be made in the trial court rather than in a preliminary hearing before the magistrate who issued the warrant if no charges have been brought against the person whose property was seized. 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) Paragraph (g)(2) provides that a motion for return of property, made after charges have been brought against a person whose property was seized, in the trial court, shall must be treated as a motion to suppress under N.D.R.Crim.P. Rule 12 and brought before the trial court. The purpose of this provision is to have a series of pretrial motions disposed of in a single appearance (see N.D.R.Crim.P. Rule 17.1, Omnibus Hearing) rather than in a series of pretrial motions made on different dates causing undue delay in administration. (See Advisory Committee Note to Rule 41, H.D. 92-285 (1972), page 45, ¶ 3.) Subdivisions (a), (b), and (c) were Rule 41 was amended in 1983, effective September 1, 1983, to add persons as permissible objects of search warrants. These amendments follow followed the 1979 amendments to Fed.R.Crim.P. 41, and are were intended to make it possible for a search warrant to issue to search for a person if: ( i 1) there is probable cause to arrest that person; or ( ii 2) that person is being unlawfully restrained. See Advisory Committee Note to Fed.R.Crim.P. 41, 1979 Amendment. Subdivisions (c) and (d) were Rule 41 was amended, effective March 1, 1990. The amendments are were technical in nature and no substantive change is was intended. Subdivision (e) Rule 41 was amended, effective March 1, 1992, to track the federal rule.
Rule 41 was amended, effective ______________, 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 _____________ pages _____; 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.
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 REFERENCE: N.D.R.Crim.P. 12 (Pleadings and Motions Before Trial; Defenses and Objections); N.D.R.Crim.P. 17.1 (Omnibus Hearing and Pretrial Conference); N.D.R.Ct. 2.2 (Facsimile Transmission).