TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 19, 2016
RE: Rule 41, N.D.R.Crim.P., Search and Seizure
In response to the U.S. Supreme Court's decision in Birchfield v. North Dakota, which made search warrants mandatory for blood tests in impaired driving cases, our Court formed an Electronic Search Warrant Workgroup to discuss ways to streamline the process of obtaining a search warrant in such cases. A copy of the workgroup's report is attached.
One of the workgroup's suggestions was that Rule 41 be amended to allow licensed peace officers to make an unsworn declaration under penalty of perjury in support of a request for a search warrant. Proposed amendments to Rule 41 that would make this change are attached. The committee has previously acted on amendments to the criminal rules that would allow licensed peace officers to make unsworn declarations in support of complaints and arrest warrants.
Attorney Tom Dickson has requested that the committee consider further 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 He says the statute is outdated and has led to unfortunate consequences.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 and proposed amendments to supersede the requested part of N.D.C.C. 29-29-01 are included in the attached draft.
N.D.C.C. 29-29-01, copy attached, was considered but not superseded by the committee and the Supreme Court when the rule was first adopted.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).