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
where the property or person sought is located, or from which it has been
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
(i) (1) property that constitutes evidence of the
commission of a criminal offense a crime;
(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
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
(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
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
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
Otherwise a stenographic or longhand verbatim record must be made. If a voice
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
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 Electronic Transmission.
(i) (A) General Rule. An affidavit in support of the
issuance of a warrant may be submitted
by facsimile electronic transmission. A warrant may be transmitted by
(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 electronic transmission. An affidavit sworn to
a magistrate over the
telephone under this paragraph is sworn to before a magistrate for the purposes
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 supporting
affidavit was sworn to
over the telephone. The facsimile duplicate of the original electronic
transmission 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
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
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
(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
of property on the ground of being entitled to lawful possession of 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
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
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
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
or Federal federal, acting within or for the territorial jurisdiction. The
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 on the
nonavailability of a State state magistrate.
Subdivision (a) does not require that the individual requesting the search warrant be a law
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
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
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.
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
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
(1966). See Advisory Committee Note to Federal Rule 41 (1972), H.D. 92-285, page
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
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
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
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. Paragraph (c)(3) was amended, effective _______________, to substitute the term
"electronic" for "facsimile." This change was intended to expand the means available for
obtaining a warrant without the personal appearance of the affiant to include facsimile, e-mail,
and other electronic transmission methods.
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
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.
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 April 28-29, 2005, pages 5-8; January 27-27, 2005, pages 33-34; 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).