RULE 41. SEARCH AND SEIZURE
(a) Authority to Issue a Warrant.
A search warrant authorized by this rule may be issued by a A state or federal magistrate acting within or for the territorial jurisdiction wherein 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
or Persons Which May be Seized With a Warrant Subject to Search and Seizure. A warrant may be issued under this rule to search for and seize any for any of the following: (i) (1) property that constitutes evidence of the commission of a criminal offense a crime; or (ii) (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (iii) (3) property designed or intended for use, or which is or has been used as the means of, committing a criminal offense crime; or (iv) (4) a person for whose arrest there is probable cause, or who is unlawfully restrained.
Issuance and contents Issuing the Warrant.
upon on Affidavit or Sworn Recorded Testimony.
(A) In General. A warrant other than a warrant
upon on oral testimony under subdivision 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 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.
(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 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.
upon on 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 When reasonable under the circumstances, a state or federal magistrate may issue a warrant based upon on sworn oral testimony communicated by telephone or other appropriate means. (ii) (B) Application. 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 to be modified. (iii) (C) Issuance. 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 on oral testimony may be based on the same kind of evidence as is sufficient for a warrant upon on affidavit. (iv) (D) Recording and Certification Certifying of Testimony. 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 use the device to 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. (v) (E) Contents. The contents of a warrant upon on oral testimony are the same as the contents of a warrant upon on affidavit. (vi) (F) 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) (G) Motion to Suppress Precluded. Absent a finding of bad faith, evidence obtained pursuant to under a warrant issued under this subdivision in accordance with Rule 41 (c)(2) is not subject to a motion to suppress on the ground that the circumstances were not such as to make it was not reasonable under the circumstances to dispense with the requisites of paragraph (1) for the issuance of a warrant issue the warrant on oral testimony.
(3) Warrant by Facsimile Transmission.
(i) (A) 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) (B) 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 Rule 41 (c). (iii) (C) 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) (D) Execution. The person who executes the warrant shall enter the date and time of execution on the face of the facsimile warrant.
(d) Execution and Return With Inventory.
(1) Inventory. An officer present during the execution of the warrant shall 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.
(2) Receipt. The officer taking property under the warrant shall:
(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
a copy of the warrant and a receipt for the property taken, if that person is present, ; or , if not present, shall (B) leave the a copy of the warrant and receipt at the place from which the officer took the property was taken.
(3) Return. The officer executing the warrant must promptly return
must be made promptly and must be accompanied by a written it -- together with a copy of the inventory of any property taken -- to the magistrate designated on the warrant. 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 on request shall deliver 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
of property on the ground of being entitled to lawful possession of the property. 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 the court may impose reasonable conditions may be imposed to protect access and use of the property in subsequent later proceedings. If a motion for return of property is made or comes on for hearing in the trial court heard after an indictment, information, or complaint is filed, it must be treated also as a motion to suppress under N.D.R.Crim.P. Rule 12.
(f) Motion to Suppress. A motion to suppress evidence may be made in the trial court as provided in
N.D.R.Crim.P. Rule 12.
(g) Return of Papers to Clerk. The magistrate
before to whom the warrant is returned shall attach to the warrant a copy of the return, inventory and all other related papers in connection therewith and shall file them with the clerk of the trial court.
(h) Scope and
(1) Scope. This rule does not modify any
act, inconsistent with it, statute regulating search , or seizure, and or the issuance and execution of a search warrants warrant in special circumstances for which special provision is made.
(2) Definitions. The following definitions apply under this rule:
The term "property" is used in the rule to include (A) "Property" includes documents, books, papers and any other tangible objects. The term "daytime" is used in this rule to mean (B) "Daytime" means the hours from six o'clock 6:00 a.m. to ten o'clock 10:00 p.m. according to local time.
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 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 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 state or Federal 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 federal rule, which permits a State 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 federal magistrate only upon on the nonavailability of a State state magistrate.
Subdivision (a) 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.
Subdivision (b) describes the property or persons which may be seized with a lawfully issued search warrant.
The 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 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 which that 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.)
Subdivision (c)(1) follows the
Federal Rule federal rule except that North Dakota's Rule rule permits the issuance of a warrant upon 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 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 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
upon on legally obtained evidence. The requirement 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 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) of this Rule. Subdivision 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 subdivision 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.
Paragraph (c)(3) was added
to subdivision (c), effective January 1, 1995, to provide for the issuance of warrants by facsimile transmission without the personal appearance of the affiant.
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.
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
(see N.D.R.Crim.P. , 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. (See Advisory Committee Note to Rule 41, H.D. 92-285 (1972), page 45, /P 3.)
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
(i) there is probable cause to arrest that person; or (ii) that person is being unlawfully restrained. See Advisory Committee Note to Fed.R.Crim.P. 41, 1979 Amendment.
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 ______________, 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_____; January 27-27, 2005, 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).