TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: May 1, 2016
RE: Rule 41, N.D.R.Crim.P., Search and Seizure
Attorney Tom Dickson has requested that the committee consider amendments to Rule 41 that would supersede the part of N.D.C.C. 29-29-01 that requires evidence seized under a search warrant to be brought before the magistrate. He says the statute is outdated and has led to unfortunate consequences. His email is attached.
Attached are proposed amendments to Rule 41 that would supersede the requested part of N.D.C.C. 29-29-01.
N.D.C.C. 29-29-01, copy attached, was considered but not superseded by the committee and the Supreme Court when the rule was first adopted. This means that they knew the statute existed and it was part of what they considered when drafting Rule 41.
Rule 41 was somewhat unique in that it was discussed at several meetings before it was finally approved by the committee. There is nothing in the minutes, however, on whether property seized under a search warrant would have to be delivered directly to the magistrate. Rule 41 has always required return only of an inventory.
It is possible that the committee did not supersede N.D.C.C. 29-29-01 because it defines what can be done under a warrant (bring the property before the magistrate) while Rule 41 sets out the specific procedure for accomplishing the return (inventory the property and bring the magistrate the inventory).