RULE 41. SEARCH AND SEIZURE
1 (a) Authority to Issue a Warrant. A state or federal magistrate acting within
2 or for the territorial jurisdiction where the property or person sought is located, or
3 from which it has been removed, may issue a search warrant authorized by this
5 (b) Persons or Property Subject to Search and Seizure. A warrant may be
6 issued for any of the following:
7 (1) property that constitutes evidence of a crime;
8 (2) contraband, the fruits of crime, or things criminally possessed;
9 (3) property designed or intended for use, or which is or has been used as
10 the means of, committing a crime;
11 (4) a person for whose arrest there is probable cause, or who is unlawfully
13 (c) Issuing the Warrant.
14 (1) Warrant on Affidavit or Sworn Recorded Testimony.
15 (A) In General. A warrant other than a warrant on oral testimony under
16 Rule 41 (c)(2) may issue only
on when the grounds for
issuing the warrant are
17 established in:
18 (i) a written declaration by a licensed peace officer made and subscribed
19 under penalty of perjury, or
20 (ii) an affidavit or affidavits sworn to or sworn recorded testimony taken
21 before a state or federal magistrate
and establishing the grounds for
23 (B) Examination. Before ruling on a request for a warrant, the magistrate
24 may require the affiant or other witnesses to appear personally and may examine
25 under oath the affiant and any witnesses the affiant may produce. This examination
26 must be recorded and made part of the proceedings.
27 (C) Probable Cause. If the state or federal magistrate is satisfied that
28 grounds for the application exist or that there is probable cause to believe they
29 exist, the magistrate must issue a warrant identifying the property or person to be
30 seized and naming or describing with particularity the person or place to be
31 searched. The finding of probable cause may be based upon hearsay evidence in
32 whole or in part.
33 (D) Command to Search. The warrant must be directed to a peace officer
34 authorized to enforce or assist in enforcing any law of this state. It must command
35 the officer to search, within a specified period of time not to exceed ten days, the
36 person or place named for the property or person specified.
37 (E) Service and Return. The warrant must be served in the daytime, unless
38 the issuing authority, by appropriate provision in the warrant, and for reasonable
39 cause shown, authorizes its execution at times other than daytime. It may designate
40 a state or federal magistrate to whom it must be returned.
41 (2) Warrant by Telephonic or Other Reliable Electronic Means. In
42 accordance with Rule 4.1, the magistrate may issue a warrant based on information
43 communicated by telephone or other reliable electronic means.
44 (3) Warrant Seeking Electronically Stored Information. A warrant under
45 Rule 41(c) may authorize the seizure of electronic storage media or the seizure or
46 copying of electronically stored information. Unless otherwise specified, the
47 warrant authorizes a later review of the media or information consistent with the
48 warrant. The time for executing the warrant refers to the seizure or on-site copying
49 of the media or information, and not to any later off-site copying or review.
50 (d) Execution and Return With Inventory.
51 (1) Execution. The person who executes the warrant must enter the date and
52 time of the execution on the face of the warrant.
53 (2) Inventory. An officer present during the execution of the warrant must
54 prepare and verify an inventory of any property seized. The officer must do so in
55 the presence of the applicant for the warrant and the person from whom, or from
56 whose premises, the property was taken. If either one is not present, the officer
57 must prepare and verify the inventory in the presence of at least one other credible
58 person. In a case involving the seizure of electronic storage media or the seizure or
59 copying of electronically stored information, the inventory may be limited to
60 describing the physical storage media that were seized or copied. The officer may
61 retain a copy of the electronically stored information that was seized or copied.
62 (3) Receipt. The officer taking property under the warrant must:
63 (A) give a copy of the warrant and a receipt for the property taken to the
64 person from whom or from whose premises the property was taken; or
65 (B) leave a copy of the warrant and receipt at the place from which the
66 officer took the property.
67 (4) Return. The officer executing the warrant must promptly return
68 it--together with a copy of the inventory--to the magistrate designated on the
69 warrant. The officer may do so by reliable electronic means. The magistrate on
70 request must give a copy of the inventory to the person from whom, or from whose
71 premises, the property was taken and to the applicant for the warrant.
72 (e) Motion for Return of Property. A person aggrieved by an unlawful
73 search and seizure of property or by the deprivation of property may move the trial
74 court for the property's return. The court must receive evidence on any factual
75 issue necessary to decide the motion. If it grants the motion, the court must return
76 the property to the moving party, although the court may impose reasonable
77 conditions to protect access and use of the property in later proceedings. If a
78 motion for return of property is made or heard after an indictment, information, or
79 complaint is filed, it must be treated also as a motion to suppress under Rule 12.
80 (f) Motion to Suppress. A motion to suppress evidence may be made in the
81 trial court as provided in Rule 12.
82 (g) Return of Papers to Clerk. The magistrate to whom the warrant is
83 returned must attach to the warrant a copy of the return, inventory and all other
84 related papers and must file them with the clerk of the trial court.
85 (h) Scope and Definitions.
86 (1) Scope. This rule does not modify any statute regulating search or
87 seizure, or the issuance and execution of a search warrant in special circumstances.
89 (2) Definitions. The following definitions apply under this rule:
90 (A) "Property" includes documents, books, papers and any other tangible
92 (B) "Daytime" means the hours from 6:00 a.m. to 10:00 p.m. according to
93 local time.
94 EXPLANATORY NOTE
95 Rule 41 was amended, effective September 1, 1983; March 1, 1990; March
96 1, 1992 January 1, 1995; March 1, 2006; March 1, 2011; March 1, 2012; March 1,
97 2013; __________.
98 Rule 41 is an adaptation of Fed.R.Crim.P. 41 and is designed to implement
99 the provisions of Article I, Section 8, of the North Dakota Constitution and the
100 Fourth Amendment to the United States Constitution, which guarantee, "The right
101 of the people to be secure in their persons, houses, papers and effects against
102 unreasonable searches and seizures shall not be violated; and no warrant shall issue
103 but upon probable cause, supported by oath or affirmation, particularly describing
104 the place to be searched and the persons and things to be seized." To implement
105 this constitutional protection, an illegal search and seizure will bar the use of such
106 evidence in a criminal prosecution. The suppression sanction is imposed in order
107 to discourage abuses of power by law enforcement officials in conducting searches
108 and seizures.
109 Subdivision (a) provides that a search warrant be issued by a magistrate,
110 either state or federal, acting within or for the territorial jurisdiction. The provision
111 which permits a federal magistrate to issue a search warrant is the reciprocal of the
112 federal rule, which permits a state magistrate to issue a search warrant pursuant to
113 a federal matter. It is contemplated that a search warrant will be issued by a federal
114 magistrate only on the nonavailability of a state magistrate.
115 Subdivision (a) does not require that the individual requesting the search
116 warrant be a law enforcement officer. There appears to be common-law support
117 for the use of the search warrant as a means of getting an owner's property back.
118 The primary purpose of the rule, however, is the authorization of a search in the
119 interest of law enforcement and as a practical matter the request for issuance of a
120 search warrant by someone other than a law enforcement officer is virtually
122 Subdivision (b) describes the property or persons which may be seized with
123 a lawfully issued search warrant. Issuance of a search warrant to search for items
124 of solely evidential value is authorized. There is no intention to limit the protection
125 of the Fifth Amendment against compulsory self-incrimination, so items that are
126 solely "testimonial" or "communicative" in nature might well be inadmissible on
127 those grounds.
128 Paragraph (c)(1) follows the federal rule except that North Dakota's rule
129 permits the issuance of a warrant on sworn recorded testimony without an
130 affidavit. Probable cause for the issuance of a search warrant should be assessed
131 under the totality-of-circumstances test.
132 Paragraph (c)(1) was amended, effective ________________, to allow
133 grounds for issuance of a search warrant to be established in a written declaration
134 by a licensed peace officer made and subscribed under penalty of perjury.
135 The provision for examination of the affiant before the magistrate is
136 intended to assure the magistrate an opportunity to make a careful decision as to
137 whether there is probable cause based on legally obtained evidence. The
138 requirement that the testimony be recorded is to insure an adequate basis for
139 determining the sufficiency of the evidentiary grounds for the issuance of the
140 search warrant if a motion to suppress is later filed.
141 The language of subparagraph (c)(1)(E), "for reasonable cause shown," is
142 intended to explain the necessity for executing the warrant at a time other than the
143 daytime. This provision is intended to be a substantive prerequisite to the issuance
144 of a warrant that is to be executed at a time other than daytime, although it is not
145 necessary that the quoted language ("for reasonable cause shown") be defined in
146 subdivision (h).
147 Former paragraphs (c)(2) and (c)(3) were deleted and a new paragraph
148 (c)(2) was added, effective March 1, 2013, to allow the magistrate to issue a
149 warrant based on information communicated by telephone or other reliable
150 electronic means under the procedure set out in Rule 4.1.
151 Paragraph (c)(3) was added and paragraph (d)(1) was amended, effective
152 March 1, 2012, to provide guidelines for warrants authorizing the seizure of
153 electronic storage media and electronically stored information and for the
154 inventory of seized electronic material. The amendments were based on the
155 December 1, 2009, amendments to Fed.R.Crim.P. 41.
156 Subdivision (d) is intended to make clear that a copy of the warrant and an
157 inventory receipt for property taken shall be left at the premises at the time of the
158 lawful search or with the person from whose premises the property is taken if he is
160 Paragraph (d)(4) was amended, effective March 1, 2013, to allow an officer
161 to make a return by reliable electronic means.
162 Subdivision (e) requires that the motion for return of property be made in
163 the trial court rather than in a preliminary hearing before the magistrate who issued
164 the warrant. It further provides for a return of the property if: (1) the person is
165 entitled to lawful possession, and (2) the seizure is illegal. However, property
166 which is considered contraband does not have to be returned even if seized
167 illegally. The last sentence of subdivision (e) provides that a motion for return of
168 property, made in the trial court, shall be treated as a motion to suppress under
169 N.D.R.Crim.P. 12. The purpose of this provision is to have a series of pretrial
170 motions disposed of in a single appearance, such as at a Rule 17.1 (Omnibus
171 Hearing), rather than in a series of pretrial motions made on different dates causing
172 undue delay in administration.
173 Subdivisions (a), (b), and (c) were amended in 1983, effective September 1,
174 1983, to add persons as permissible objects of search warrants. These amendments
175 follow 1979 amendments to Fed.R.Crim.P. 41 and are intended to make it possible
176 for a search warrant to issue to search for a person if there is probable cause to
177 arrest that person; or that person is being unlawfully restrained.
178 Subdivisions (c) and (d) were amended, effective March 1, 1990. The
179 amendments are technical in nature and no substantive change is intended.
180 Subdivision (e) was amended, effective March 1, 1992, to track the federal
182 Rule 41 was amended, effective March 1, 2006, in response to the
183 December 1, 2002, revision of the Federal Rules of Criminal Procedure. The
184 language and organization of the rule were changed to make the rule more easily
185 understood and to make style and terminology consistent throughout the rules.
186 SOURCES: Joint Procedure Committee Minutes of
187 ____________________; January 26-27, 2012, pages 26-27; April 28-29, 2011,
188 page 17; September 23-24, 2010, page 32; April 29-30, 2010, page 20, 25-26;
189 April 28-29, 2005, pages 5-8; January 27-27, 2005, pages 33-34; April 28-29,
190 1994, pages 22-23; November 7-8, 1991, page 4; October 25-26, 1990, pages
191 15-16; April 20, 1989, page 4; December 3, 1987, page 15; October 15-16, 1981,
192 pages 12-15; December 7-8, 1978, pages 23-26; October 12-13, 1978, pages
193 15-19; April 24-26, 1973, page 14; December 11-15, 1972, pages 31-37;
194 November 18-20, 1971, pages 3-9; September 16-18, 1971, pages 11-32; March
195 12-13, 1970, page 3; November 20-21, 1969, pages 19-24; May 15-16, 1969,
196 pages 21-23; Fed.R.Crim.P. 41.
197 STATUTES AFFECTED:
198 SUPERSEDED: N.D.C.C. §§ 29-29-01 to the extent that it requires
199 personal property to be brought before the magistrate, 29-29-02, 29-29-03,
200 29-29-04, 29-29-05, 29-29-06, 29-29-07, 29-29-10, 29-29-11, 29-29-12, 29-29-13,
201 29-29-14, 29-29-15, 29-29-16, 29-29-17.
202 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,
204 N.D.C.C. ch. 28-29.1. N.D.C.C. ch.19-03.1.
205 CROSS REFERENCE: N.D.R.Crim.P. 4.1 (Complaint, Warrant, or
206 Summons by Telephone or Other Reliable Electronic Means); N.D.R.Crim.P. 12
207 (Pleadings and Pretrial Motions); N.D.R.Crim.P. 17.1 (Omnibus Hearing and
208 Pretrial Conference); N.D.R.Ct. 2.2 (Facsimile Transmission); N.D. Sup. Ct.
209 Admin. R. 52 (Interactive Television).