RULE 4. ARREST WARRANT OR SUMMONS UPON COMPLAINT
1 (a) Issuance.
2 (1) Warrant. If it appears from the complaint,
and any an affidavit filed with
3 the complaint, or from a written declaration made and subscribed under penalty of
4 perjury by a licensed peace officer, that there is probable cause to believe that a
5 criminal offense has been committed by the defendant, the magistrate must issue
6 an arrest warrant to an officer authorized by law to execute it. [Except as provided
7 in subdivision (a)(2).] The finding of probable cause must be based upon evidence,
8 which may be hearsay in whole or in part, provided there is a substantial basis for
9 believing the source of the hearsay to be credible and for believing that there is a
10 factual basis for the information furnished. Before ruling on a request for a
11 warrant, the magistrate may examine under oath the complainant and any other
12 witnesses produced, in which case the proceedings must be recorded. A magistrate
13 who has not been admitted to practice law in this state may not issue a warrant
14 until the complaint has been approved by the prosecuting attorney. If it appears to
15 the magistrate from the complaint or other written evidence that the accused is
16 likely to abscond before the prosecuting attorney can approve the complaint, and
17 the magistrate so certifies on the complaint, the magistrate may issue a warrant
18 without approval of the prosecuting attorney.
19 (2) Summons. The magistrate may issue a summons in lieu of a warrant if
20 the magistrate has reason to believe that the defendant will appear in response to it
21 or if the defendant is a corporation.
22 (3) Failure of Defendant to Appear After Summons. If a defendant fails to
23 appear in response to a summons or there is reasonable cause to believe that the
24 defendant will fail to appear, a magistrate must issue an arrest warrant. If a
25 defendant corporation fails to appear in response to a summons, a magistrate who
26 is empowered to try the offense for which the summons was issued must enter a
27 plea of not guilty and may proceed to trial and judgment without further process; a
28 magistrate who is not so empowered must proceed as though the defendant had
30 (4) Additional Warrants or Summonses. A magistrate may issue more than
31 one warrant or summons on the same complaint.
32 (5) Warrant or Summons by Telephone or Other Reliable Electronic Means.
33 In accordance with Rule 4.1, the magistrate may issue a warrant or summons based
34 on information communicated by telephone or other reliable electronic means.
35 (b) Form.
36 (1) Warrant. A warrant must:
37 (A) be in writing, in the name of the State of North Dakota;
38 (B) be signed by the issuing magistrate with the title of the magistrate's
40 (C) state the date of issuance and the municipality or county where issued;
41 (D) contain the defendant's name or, if it is unknown, a name or description
42 by which the defendant can be identified with reasonable certainty;
43 (E) describe the offense charged against the defendant; and
44 (F) command the defendant be arrested and brought before the nearest
45 available magistrate.
46 The warrant may also have endorsed upon it the recommended or
47 acceptable amount of bail if the offense is bailable.
48 (2) Summons. A summons must be in the same form as the warrant except
49 that it must require the defendant to appear before a magistrate at a stated time and
50 place and must inform the defendant that if the defendant fails to appear, an arrest
51 warrant will issue.
52 (c) Execution; Service.
53 (1) Execution of Warrant. The warrant is directed to all peace officers of
54 this state and may be executed only by a peace officer. It is executed by the arrest
55 of the defendant and may be executed in any county of the state by any peace
56 officer of this state. Upon arrest, an officer possessing the original or a duplicate
57 original warrant must show it to the defendant immediately upon request. If the
58 officer does not possess the warrant at the time of the arrest, the officer must
59 inform the defendant of the warrant's existence and of the offense charged and, at
60 the defendant's request must show the original or a duplicate original warrant or a
61 copy to the defendant as soon as possible.
62 (2) Service of Summons. The summons must be served in the manner
63 provided for service of a summons in a civil action. Any person authorized to serve
64 a summons in a civil action may serve a summons.
65 (d) Return.
66 (1) After executing a warrant, the officer must return it to the magistrate
67 before whom the defendant is brought in accordance with Rule 5. The officer may
68 do so by reliable electronic means. At the request of the prosecuting attorney, an
69 unexecuted warrant must be returned to and canceled by the magistrate who issued
71 (2) The person to whom a summons is delivered for service must return it to
72 the magistrate before whom the summons is returnable on or before the return day.
73 (3) At the request of the prosecuting attorney made while a complaint is
74 pending, a magistrate may deliver an unexecuted warrant, an unserved summons,
75 or a copy of the warrant or summons to a peace officer for execution or service.
76 (e) Defective Warrant or Summons; Amendment. No person arrested under
77 a warrant or appearing in response to a summons may be discharged from custody
78 or dismissed because of any informality in the warrant or summons, but the
79 warrant or summons may be amended to remedy the informality.
80 EXPLANATORY NOTE
81 Rule 4 was amended, effective March 1, 2006; March 1,
83 Subdivision (a) is derived from the Fed.R.Crim.P. 4. The most important
84 aspect of subdivision (a) is the provision that a warrant for arrest may issue under
85 this rule only if it appears from the complaint, from an examination under oath, or
86 from any affidavit filed with the complaint, that there is probable cause for the
87 magistrate to believe that a criminal offense has been committed by the defendant.
88 Subdivision (a) was amended, effective________________, to allow a
89 magistrate, in determining probable cause, to rely on a written declaration made
90 and subscribed under penalty of perjury by a licensed peace officer.
91 Subdivision (a) further provides that a warrant or summons may issue on
92 the basis of hearsay evidence provided the magistrate has adequate reason to
93 believe that the hearsay information is both credible (truthful) and reliable
94 (accurate). These provisions are deemed to be declaratory of existing law. The
95 probable-cause provision must be read in light of the Fourth Amendment. The
96 provision for hearsay merely prescribes the standard of credibility and reliability. It
97 does not attempt to identify the situations in which evidence in the complaint is in
98 fact adequate to meet the twin tests of credibility and reliability. This is an issue
99 which must be dealt with on a case-to-case basis, taking into account the unlimited
100 variations and sources of information and the opportunity of the informant to
101 perceive accurately the factual data which the informant furnishes.
102 Subdivision (a) makes clear that the magistrate may require the complainant
103 to appear personally and may examine the complainant or witnesses to determine
104 whether probable cause exists. If the magistrate does hear from the complainant or
105 witnesses, the testimony must be recorded. This is to insure that there exists an
106 adequate basis for reviewing the propriety of the issuance of the warrant, if, for
107 example, its issuance should be attacked upon a subsequent motion to suppress
108 evidence seized incident to the arrest. Subdivision (a) is also intended to make it
109 possible for the magistrate to issue a summons in lieu of an arrest warrant even
110 though not requested to do so by the prosecuting attorney.
111 Subdivision (a) also provides that where the magistrate is someone other
112 than a person admitted to practice law in this state, the magistrate shall not issue a
113 warrant until the complaint has been approved by the prosecuting attorney. This
114 provision is intended to guard against non-law-trained magistrates, who because of
115 their lack of legal expertise may have a problem with the requirement of probable
116 cause. Subdivision (a), however, does provide that a warrant may be issued by
117 such magistrate without the approval of the prosecuting attorney where the
118 magistrate reasonably believes that the accused is likely to abscond the jurisdiction
119 before the prosecuting attorney can approve the complaint, provided the magistrate
120 so certifies on the complaint.
121 Paragraph (a)(2) provides the magistrate with some latitude in the exercise
122 of discretion to issue the summons in cases where the magistrate reasonably
123 believes that the defendant will appear in response to the summons. Paragraph
124 (a)(2) also provides for the magistrate to issue a summons rather than a warrant
125 where the defendant is a corporation. It provides that a summons will issue to a
126 corporate defendant because as a practical matter it is not literally possible to make
127 an arrest. Furthermore, the probability is that the corporation will appear and that
128 the crime is not one of violence.
129 Paragraph (a)(3) provides a remedy in cases where the defendant fails to
130 answer the summons. It follows the provisions of both Fed.R.Crim.P. 4 (a) and the
131 Model Code of Pre-Arraignment Procedure. This paragraph also provides for
132 anticipatory remedy where there is failure of the
summonee person summoned to
134 Paragraph (a)(4) provides for the issuance of more than one warrant or
135 summons on the same complaint. The provision for issuance of additional warrants
136 on the same complaint embodies the practice provided in Fed.R.Crim.P. 4(a).
137 When a complaint names several defendants, it may be desirable to issue separate
138 warrants to each defendant in order to facilitate service and return, especially if the
139 defendants are apprehended at different times and places.
140 Paragraph (a)(5) was added, effective March 1, 2013, to allow the
141 magistrate to issue a warrant or summons based on information communicated by
142 telephone or other reliable electronic means under the procedure set out in Rule
144 Paragraph (b)(1) describes the form of the warrant. This paragraph requires
145 that the warrant be in writing, that it be in the name of the State of North Dakota,
146 and that it be signed by the issuing magistrate with the title of the magistrate's
147 office. This differs from Fed.R.Crim.P. 4(b), in that the federal rule does not
148 provide for the warrant to be in writing nor does it provide that it be in the name of
149 the jurisdiction. The federal rule further differs in that it does not require that the
150 signature of the issuing officer bear that officer's title, nor does it state the date
151 when issued and the municipality or county where issued. The provision for the
152 issuance of a warrant contemplates that the warrant will be issued in counties other
153 than where the offense occurred.
154 The provision that the warrant be in the name of the State of North Dakota
155 or in the name of a municipality, if the violation of a municipal ordinance is
156 charged, is consistent with these rules in providing for the issuance of a warrant for
157 violations of municipal ordinances which are deemed criminal in nature. The
158 provision for description of the offense charged satisfies the constitutional
159 requirement that notice be given to the defendant of the offense charged.
160 The final provision of paragraph (b)(1) indicates that bail may be endorsed
161 upon the warrant. The provision that a recommendation of an amount of bail
162 acceptable be included in the warrant reflects the notion that the magistrate issuing
163 the warrant is in a better position to determine the bail requirement than would be
164 the nearest available magistrate to whom the defendant is brought, if not the
165 issuing magistrate. The requirement that upon arrest the defendant be brought
166 before the nearest available magistrate is adapted from the criminal rules of
168 Paragraph (b)(2) provides that a summons will be in the same form as a
169 warrant (in writing signed by the magistrate who issued it, etc.) and that it contain
170 a warning that failure to respond to it will establish grounds for the issuance of a
172 Subdivision (c) directs that the warrant shall be directed to all peace officers
173 of this State and further provides for its execution. The provision that the arresting
174 officer need not have the warrant in possession at the time of the arrest is rendered
175 necessary by the fact that a fugitive may be discovered and apprehended by any
176 officer. It is impossible for a warrant to be in the possession of every officer who is
177 searching for a fugitive or who unexpectedly might be in a position to apprehend a
179 Paragraph (c)(2) provides for service of summons in substantially the same
180 manner as civil actions under N.D.R.Civ.P. 4. This rule provides essentially the
181 same requirements as Fed.R.Civ.P. 4(c)(1). Provisions for ease of service in the
182 case of a summons reflect the fact that the individual's right to remain at liberty is
183 not infringed.
184 Subdivision (d) governs the return of the warrant or summons and is
185 essentially the same as Fed.R.Crim.P. 4(c)(4). The return is not conclusive and an
186 error in the return does not void the warrant, where no one was misled thereby, and
187 facts stated in the return will not be accepted where testimony shows them to be
188 untrue. This subdivision provides that in the case of an unexecuted warrant and
189 upon request of the prosecuting attorney, the warrant shall be returned to the
190 magistrate who issued it for cancellation. It further provides that a person to whom
191 the summons was delivered shall appear on or before the return date stated on the
192 face of the summons. Finally, subdivision (d) permits reissuance, upon request of
193 the prosecuting attorney, of warrants which have been initially returned
194 unexecuted but which have not been canceled, to be delivered to a peace officer
195 for execution or service.
196 Subdivision (d) was amended, effective March 1, 2013, to allow the officer
197 to return the warrant to the magistrate by reliable electronic means.
198 Subdivision (e) provides a remedy in cases where the warrant or summons
199 is defective. It permits the prosecution to cure a defect which is deemed an
200 informality in the warrant. There shall, however, be dismissal where the warrant is
201 not sufficient on its face.
202 Rule 4 was amended, effective March 1, 2006, in response to the December
203 1, 2002, revision of the Federal Rules of Criminal Procedure. The language and
204 organization of the rule were changed to make the rule more easily understood and
205 to make style and terminology consistent throughout the rules.
206 SOURCES: Joint Procedure Committee Minutes of September 24-25, 2016,
207 page 28; January 26-27, 2012, page 25-26; January 29-30, 2004, pages 21-22;
208 January 27-29, 1972, pages 7-17; November 20-21, 1969, pages 15-16; May 3-4,
209 1968, pages 3-4; January 26-27, 1968, pages 4-7; Fed.R.Crim.P. 4.
210 STATUTES AFFECTED:
211 SUPERSEDED: N.D.C.C. §§§§ 29-05-06, 29-05-07, 29-05-08, 29-05-09,
212 29-05-28, 29-05-29, 29-05-30, 33-12-06, 40-18-07, 40-18-08.
213 CONSIDERED: N.D.C.C. §§§§ 29-05-10, 29-05-23, 29-05-24, 29-05-25,
214 29-05-26, 29-05-27, 29-05-31, 40-11-11, 40-18-18.
215 CROSS REFERENCE: N.D.R.Civ.P. 4 (Persons Subject to
216 Jurisdiction--Process--Service); N.D.R.Crim.P. 4.1 (Complaint, Warrant, or
217 Summons by Telephone or Other Reliable Electronic Means).