RULE 4. ARREST WARRANT OR SUMMONS UPON COMPLAINT
(1) Warrant. If it appears
to the magistrate from the complaint, and
from any affidavit filed
with the complaint, that there is probable cause to believe that a criminal offense has been
committed by the defendant, a warrant for the arrest of the defendant upon the complaint
shall issue the magistrate must issue an arrest warrant to any
an officer authorized by law to
execute it. [Except as provided in subdivision (a)(2).] The finding of probable cause
must be based upon evidence, which may be hearsay in whole or in part, provided there
a substantial basis for believing the source of the hearsay to be credible and for believing that
there is a factual basis for the information furnished. Before ruling on a request for a
warrant, the magistrate may examine under oath the complainant and any other witnesses
produced, in which case the proceedings shall must be recorded
by a court reporter or
recording equipment. If the magistrate before whom the complaint is made is
than a person has not been admitted to practice law in this State, he shall not issue a
A magistrate who has not been admitted to practice law in this state may not issue a
until the complaint has been approved by the prosecuting attorney. If it appears to the
magistrate from the complaint or other written evidence submitted to him that
is likely to abscond before the prosecuting attorney can approve the complaint, and the
magistrate so certifies on the complaint, the magistrate may issue a warrant may
without approval of the prosecuting attorney.
A summons The magistrate may issue a summons
in lieu of a warrant if the
magistrate has reason to believe that the defendant will appear in response to it, or if the
defendant is a corporation.
(3) Failure of Defendant to Appear After Summons. If a defendant
who has been
summoned fails to appear in response to a summons or there is reasonable
cause to believe
that he the defendant will fail to appear, a magistrate must issue an
arrest warrant of arrest
shall issue. If a defendant corporation fails to appear after having been duly
response to a summons, a plea of not guilty shall be entered by the
a magistrate if he who
is empowered to try the offense for which the summons was issued must enter a plea of not
guilty and he may proceed to trial and judgment without further process;
if the a magistrate
who is not so empowered he shall must proceed as though the
defendant had appeared.
(4) Additional Warrants or Summonses. A magistrate may issue more
More than one
warrant or summons may issue on the same complaint.
The A warrant shall be
(A) be in writing, in the name of the State of
(B) be signed by the issuing magistrate with the title of the magistrate's
It shall state the date of issuance and the municipality or
county where issued;
It shall specify the name of the defendant contain the
defendant's name or, if his name
it is unknown, a ny a name or description by which
he the defendant can be identified with
reasonable certainty .;
It shall describe the offense charged against the
It shall command that the defendant be
arrested and brought before the nearest available
The warrant may also have endorsed upon it the recommended or acceptable
amount of bail
recommended or acceptable if the offense is bailable.
(2) Summons. A summons
shall must be in the same form as the
warrant except that it shall
summon must require the defendant to appear before the
magistrate issuing it or another
magistrate therein designated a magistrate at a stated time and place and shall must inform
the defendant that if he the defendant fails to appear, a warrant
for his an arrest warrant will
(c) Execution; Service.
(1) Execution of Warrant. The warrant
shall be is directed to all
peace officers of this State
and shall may be executed only by a peace officer. It shall
be is executed by the arrest of the
defendant and may be executed in any county of the State by any peace officer of this State.
The officer need not have the warrant in his possession at the time of the arrest, but if he
a warrant, or a copy thereof at that time, he shall Upon arrest, an officer possessing
warrant must show it to the defendant immediately upon request. If the officer does not
possess the warrant or a copy thereof in his possession at the time of
the arrest, he shall then
the officer must inform the defendant of the warrant's existence and of the
and of the fact that a warrant has been issued, and upon at
the defendant's request he shall
must show the warrant or a copy thereof to the defendant as soon as
(2) Service of Summons. The summons
shall must be served in
the manner provided for
service of a summons in a civil action. It may be served by any Any
person authorized to
serve a summons in a civil action may serve a summons.
The officer After executing a
warrant, the officer shall make return thereof must return
it to the magistrate before whom the defendant is brought pursuant to
in accordance with
Rule 5. At the request of the prosecuting attorney an unexecuted warrant shall
returned to and canceled by the magistrate who issued it and who shall cancel
On or before the return day the The person to whom
a summons is delivered for service
shall make return thereof must return it to the magistrate before whom
the summons is
returnable on or before the return day.
(3) At the request of the prosecuting attorney made while a complaint is pending,
returned unexecuted and not canceled, or a summons returned unserved, or a duplicate
thereof, may be delivered by the magistrate a magistrate may deliver an unexecuted
an unserved summons, or a copy of the warrant or summons to a peace officer for execution
(e) Defective Warrant or Summons; Amendment. No person arrested under a warrant or
appearing in response to a summons
shall may be discharged from
custody or dismissed
because of any informality in the warrant or summons, but the warrant or summons may be
amended so as to remedy the informality.
Rule 4 was amended, effective ___________.
Subdivision (a) is
adapted primarily derived from the
Proposed Amendments to the Federal
Rules of Criminal Procedure [48 F.R.D. 553 (1970).] Fed.R.Crim.P. 4. The
aspects aspect of Rule 4 subdivision (a) is
the provision that a warrant for arrest may issue
under this Rule rule only if it appears from the complaint, from an
examination under oath,
or from any affidavit filed with the complaint, that there is probable cause for the magistrate
to believe that a criminal offense has been committed by the defendant.
Subdivision (a) further provides that a warrant or summons may issue on the basis of
hearsay evidence provided the magistrate has adequate reason to believe that the hearsay
information is both credible (truthful) and reliable (accurate). These provisions are deemed
to be declaratory of existing law. The probable-cause provision must be read in light of the
[See Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2
2d 1503 (1958), and Aguilar v. Texas, 378 U.S. 108, 112 n. 3, 84 S. Ct. 1509, 1513 n. 3, 12
L.Ed. 2d 723 (1964).] The provision for hearsay merely prescribes the standard of
and reliability. It does not attempt to identify the situations in which evidence in the
complaint is in fact adequate to meet the twin tests of credibility and reliability. This is an
issue which must be dealt with on a case-to-case basis, taking into account the unlimited
variations and sources of information and the opportunity of the informant to perceive
accurately the factual data which he the informant furnishes.
[See the Advisory Committee
Notes of the Federal Rules of Criminal Procedure, Proposed Amendment January 1970, page
7, 48 F.R.D. 555, 558 (1970).]"
Subdivision (a) makes clear that the magistrate may require the complainant to appear
personally and may examine
him the complainant or witnesses to
probable cause exists. [See the American Law Institute, Model Code Pre-Arraignment
Procedure, T. D. No. 1, Sec. 6.03 (1966).] If the magistrate does hear from the
or witnesses, the testimony must be recorded. This is to insure that there exists an adequate
basis for reviewing the propriety of the issuance of the warrant, if, for example, its issuance
should be attacked upon a subsequent motion to suppress evidence seized incident to the
arrest. Subdivision (a) is also intended to make it possible for the magistrate to issue a
summons in lieu of an arrest warrant even though not requested to do so by the prosecuting
Subdivision (a) also provides that where the magistrate is someone other than a person
admitted to practice law in this State,
he the magistrate shall not issue
a warrant until the
complaint has been approved by the prosecuting attorney. This provision is intended to guard
against non-law-trained magistrates, who because of their lack of legal expertise may have
a problem with the requirement of probable cause. Subdivision (a), however, does provide
that a warrant may be issued by such magistrate without the approval of the prosecuting
attorney where the magistrate reasonably believes that the accused is likely to abscond the
jurisdiction before the prosecuting attorney can approve the complaint, provided the
magistrate so certifies on the complaint.
Subsection Paragraph (a)(2) provides the magistrate with some
latitude in the exercise of
discretion to issue the summons in cases where he the magistrate
reasonably believes that
the defendant will appear in response to the summons. Subsection
Paragraph (a)(2) also
provides for the magistrate to issue a summons rather than a warrant where the defendant is
a corporation. It provides that a summons will issue to a corporate defendant because as a
practical matter it is not literally possible to make an arrest. Furthermore, the probability is
that the corporation will appear and that the crime is not one of violence.
Subsection Paragraph (a)(3) provides a remedy in cases where
the defendant fails to answer
the summons. It follows the provisions of both Fed.R.Crim.P. 4 (a) , and the
Model Code of
Pre-Arraignment Procedure , Sec. 6.04(4), T.D. No. 1 (1966). This
Subsection paragraph also
provides for anticipatory remedy where there is failure of the summonee to appear.
Subsection Paragraph (a)(4) provides for the issuance of more
than one warrant or
summons on the same complaint. The provision for issuance of additional warrants on the
same complaint embodies the practice provided in Fed.R.Crim.P. 4(a). When a complaint
names several defendants it may be desirable to issue separate warrants to each defendant
in order to facilitate service and return, especially if the defendants are apprehended at
different times and places.
Subsection Paragraph (b)(1) describes the form of the
warrant. This Subsection
paragraph requires that the warrant be in writing, that it be in the name of the
State of North
Dakota, and that it be signed by the issuing magistrate with the title of his
office. This differs from Fed.R.Crim.P. 4(b), in that the Federal Rule
federal rule does not
provide for the warrant to be in writing nor does it provide that it be in the name of the
jurisdiction. The Federal Rule federal rule further differs in that it does
not require that the
signature of the issuing officer bear that officer's title, nor does it state the date when issued
and the municipality or county where issued. The provision for the issuance of a warrant
contemplates that the warrant will be issued in counties other than where the offense
The provision that the warrant be in the name of the State of North Dakota or in the name
of a municipality, if the violation of a municipal ordinance is charged, is consistent with
Rules rules in providing for the issuance of a warrant for
violations of municipal
ordinances which are deemed criminal in nature. The language which requires that the
warrant specify the name of the defendant is in keeping with N.D.C.C. § 29-05-08.
However, the Rule deviates from the statute in that it permits a description by which the
defendant reasonably can be identified. The provision for description of the offense
also is in keeping with Section 29-05-08, which satisfies the constitutional
notice be given to the defendant of the offense with which he is charged.
The final provision of
this Subsection paragraph (b)(1)
indicates that bail may be endorsed
upon the warrant. The provision that a recommendation of an amount of bail acceptable be
included in the warrant reflects the notion that the magistrate issuing the warrant is in a better
position to determine the bail requirement than would be the nearest available magistrate to
whom the defendant is brought, if he is not the issuing magistrate. The
requirement that upon
arrest the defendant be brought before the nearest available magistrate is adapted from the
criminal rules of Alaska. This provision differs from the Federal Rules, which allow
production before a magistrate outside the district where the warrant was issued only if the
arrest is outside the state and over a hundred miles from the place of issuance.
Subsection Paragraph (b)(2) provides that a summons will be in
the same form as a warrant
(in writing signed by the magistrate who issued it, etc.) and that it contain a warning that
failure to respond to it will establish grounds for the issuance of a warrant.
Subdivision (c) directs that the warrant shall be directed to all peace officers of this State
and further provides for its execution.
This Subdivision is similar to Fed.R.Crim.P.
The provision that the arresting officer need not have the warrant in his
possession at the
time of the arrest is rendered necessary by the fact that a fugitive may be discovered and
apprehended by any officer. It is impossible for a warrant to be in the possession of every
officer who is searching for a fugitive or who unexpectedly might find himself
be in a
position to apprehend a fugitive. This Subdivision sets forth the customary practice in
matters, which is in the sanction of the court.
Subsection Paragraph (c)(2) provides for service of summons in
substantially the same
manner as civil actions under N.D.R.Civ.P. 4 (d)(1). This
Rule rule provides essentially the
same requirements as Federal Rule Fed.R.Civ.P.
4(c)( 3 1). Provisions for ease of service in
the case of a summons reflect the fact that the individual's right to remain at liberty is not
Subdivision (d) governs the return of the warrant or summons and is essentially the same
as Fed.R.Crim.P. 4(c)(4). The return is not conclusive and an error in the return does not
void the warrant, where no one was misled thereby, and facts stated in the return will not be
accepted where testimony shows them to be untrue.
[See Gilbert v. United States, 291
586 (9th Cir. 1961), rehearing denied May 1961.] This Subdivision
subdivision provides that
in the case of an unexecuted warrant and upon request of the prosecuting attorney, the
warrant shall be returned to the magistrate who issued it for cancellation. It further provides
that a person to whom the summons was delivered shall appear on or before the return date
stated on the face of the summons. Finally, Subdivision subdivision
(d) permits reissuance,
upon request of the prosecuting attorney, of warrants which have been initially returned
unexecuted but which have not been canceled, to be delivered to a peace officer for
execution or service.
Subdivision (e) provides a remedy in cases where the warrant or summons is defective. It permits the prosecution to cure a defect which is deemed an informality in the warrant. There shall, however, be dismissal where the warrant is not sufficient on its face.
Rule 4 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 January 29-30, 2004, pages 21-22;
January 27-29, 1972, pages 7-17; November 20-21, 1969, pages 15-16; May 3-4, 1968,
pages 3-4; January 26-27, 1968, pages 4-7; Fed.R.Crim.P. 4
; Fed.R.Crim.P., Proposed
Amendment, Preliminary Draft, 48 F.R.D. 553 (1970); Wright, Federal Practice and
Procedure: Criminal, §§ 51-57 (1969); 8 Moore's Federal Practice, Chapter 4
(Cipes, 2d Ed. 1970); Barron, Federal Practice and Procedure: Criminal, §§
1851-1855 (1951); A.B.A. Standards for Criminal Justice, Standards Relating to Pretrial Release,
§§ 1.3, 3 and Standards Relating to Function of the Trial Judge, § 3.1;
American Law Institute Model Code of Pre-Arraignment Procedure, T.D. No. 1, § 603
SUPERSEDED: N.D.C.C. §§ 29-05-06, 29-05-07, 29-05-08, 29-05-09, 29-05-28, 29-05-29, 29-05-30, 33-12-06, 40-18-07, 40-18-08.
CONSIDERED: N.D.C.C. §§ 29-05-10, 29-05-23, 29-05-24, 29-05-25, 29-05-26, 29-05-27, 29-05-31, 40-11-11, 40-18-18.
CROSS REFERENCE: N.D.R.Civ.P. 4
(c). By Whom Served (Arrest
Summons Upon Complaint).