MINUTES OF MEETING
Joint Committee of the Judicial Council
and the State Bar Association
for the Adoption of Rules of Criminal Procedure
November 20, 1969
The Joint Committee of the Judicial Council and the State Bar Association for the Adoption of Rules of Criminal Procedure met at 9:08 a.m., November 20, 1969, in the hearing room of the Supreme Court.
Supreme Court Judge Ralph Erickstad, Chairman;
District Judge Eugene A. Burdick;
District Judge Roy A. Ilvdeson;
County Judge Kirk Smith;
Mr. Robert L. Vogel;
Mr. Gerald Glaser;
Mr. John Shaft;
Mr. John A. Graham.
Retired Supreme Court Judge James Morris;
Former Supreme Court Judge William S. Murray;
District Judge Norbert J. Muggli;
First Assistant Attorney General Paul M. Sand;
Mr. Roger Persinger.
The chairman welcomed those present.
The following corrections were noted in the minutes of the meeting of July 10-11, 1969:
1. p. 2, first line of Mr. Shaft's letter: change change to chance.
2. p. 2, last line at bottom right: change office to offense.
3. p. 5, third line of quoted statute: change take to taken.
4. p. 13, 12th line from bottom: where the word the first occurs, change it to he.
5. p. 19, third line from top: change couse to course.
Judge Burdick moved that the minutes be adopted as corrected and with the notation that the quotations from ch. 12-53 on p. 8 should have been taken from the pocket parts to the Code. Judge Smith seconded the motion. The motion carried.
Mr. Vogel commented, in regard to Rule 32(f), Sentence and Judgment: Revocation of Probation, that he does not like the idea of allowing any policeman to pick up a probationer at any time. He said that he is on the Parole Board and that they find a lot of resentment, especially locally. He thinks that sometimes there is a tendency to harassment by local officers.
The chairman appointed Mr. Vogel, Judge Ilvdeson, Mr. Shaft, and Judge Burdick as a subcommittee to reconsider Rule 32(f).
Mr. Vogel said he feels it would be better if the local officer went to the state parole officer, if he believed probation was violated.
The secretary told the committee she had made an error in copying Rule 37 (as adopted at the meeting of July 10) on green paper, that it should have been on blue. She asked that the members note that the present wording of Rule 37 was that adopted at the meeting of July 10, and any other texts of the rule should be marked to indicate that they have been superseded.
The chairman announced in regard to item 3 of the agenda [final report of Judge Ilvdeson on reason for Rule 43 not permitting sentencing in absentia] that on reconsideration he believed the report was not necessary.
The chairman called on the subcommittee composed of Judge Smith, Mr. Glaser, and Mr. Shaft for a report on whether Rule 40(Commitment to Another District; Removal [title of federal rule]) and Rule 5 (Proceedings Before the Magistrate) should be combined. Mr. Glaser distributed copies of his proposed new draft of Rule 5(a), which, if adopted, would, he believes, make a North Dakota Rule 40 unnecessary. It reads:
Rule 5. Proceedings Before the Magistrate.
(a) Appearance Before the Magistrate.
1. An officer making an arrest under a warrant issued upon a complaint for a felony shall take the arrested person without unnecessary delay before the magistrate as commanded in the warrant.
2. If an arrest is made in a county other than that in which the warrant was issued and the offense charged is a misdemeanor, (violation of a municipal ordinance, or if the arrest is made without a warrant) the arrested person shall upon his demand be taken before a magistrate in such county authorized to admit him to bail, who may admit him to bail for his appearance before the proper magistrate in the county or municipality in which the warrant was issued (or the offense triable). A complaint shall be filed forthwith in the county where the offense was allegedly committed, and a copy of the complaint shall be given to the arrested person within a reasonable time.
Mr. Glaser stated that the intent of the proposed new Rule 5(a) is to allow a person arrested to be taken before a local magistrate unless the charge is a felony and a warrant has been issued.
Judge Erickstad mentioned the problem of peace officers in a town where several counties do business--that they bring the arrested person back to the county where the alleged crime has taken place. He said it would be a trap for unwary policemen under present procedure. He mentioned Fournier v. Roed, 161 N.W.2d 458 (N.D. 1968).
Mr. Glaser said his objection is that sometimes people are picked up in Grand Forks or Fargo and then transported all the way across the state, that such people should be able to go before a magistrate and post bond.
Judge Smith said he agreed with Mr. Glaser's intent.
There followed a discussion of the practical application of such a rule. Mr. Vogel remarked that the committee should keep in mind that it had already adopted Rule 20, which allows people to plead guilty in another county.
Mr. Glaser read his draft of Rule 5(a) [for wording, see above], and moved that the action by which the committee had adopted Rule 5(a) be reconsidered and that his draft be adopted in its stead. Judge Smith seconded the motion.
Judge Smith made the substitute motion that the action by which the committee had adopted Rule 5(a) be reconsidered and that consideration of any changes be laid over one day.
Mr. Shaft seconded the motion.
Judge Burdick remarked that perhaps a distinction should be made in a case in which a complaint has been signed.
Judge Erickstad commented that many times in smaller counties the justices work on a part-time basis and it is hard to find them. If you are to require that each arrested person must be taken before a magistrate in the county in which he is apprehended, he may actually be delayed in getting before a person who can take some action.
The question being on Judge Smith's motion, the motion carried.
The chairman called on Judge Ilvdeson for a report on Rule 44(b), Right to and Assignment of Counsel, Assignment Procedure. Judge Ilvdeson referred the committee to the discussion held at the meeting of July 10, which is summarized on p. 19 of the minutes of that meeting. He said that he has come to feel that he wants to change his proposed Rule 44 by amending subdivision (a), previously adopted, and by omitting subdivision (b).
Judge Ilvdeson moved that the action by which the committee had adopted Rule 44(a) be reconsidered, and that the rule be amended by deleting the designation (a) and the subtitle Right to Assigned Counsel and inserting the words in excess of thirty days after the word jail. Judge Burdick seconded the motion.
Judge Burdick made the substitute motion that the action by which the committee had adopted Rule 44(a) be reconsidered and that the rule be amended by deleting the designation (a) and the subtitle Right to Assigned Counsel and inserting the words in excess of ninety days after the word jail. Judge Smith seconded the motion.
Mr. Glaser commented that sentences for violation of city ordinances are now limited by law to thirty days.
Judge Burdick asked: Shouldn't we go all the way and include fine in excess of $500?
Mr. Glaser said that if a defendant could not pay the fine and it was $500, the time served could be longer than 30 days if it was worked out at $5 per day.
Judge Burdick said that the Post-Conviction Procedure Act provides a flexible remedy to go along with the Supreme Court's rulings, whatever they may be. He read § 5 of the Act, as follows:
29-32-05. Inability to pay costs.--If the applicant is unable to pay court costs and expenses of representation, including stenographic, printing, and legal services, these costs and expenses, except in cases of misdemeanors exempted under the federal supreme court decisions and violations of municipal ordinances, shall be made available to the applicant in the preparation of the application, in the trial court, and on review. Costs and
expenses made available to the applicant shall, upon approval by the judge, be paid by the county in which the criminal action was venued.
North Dakota Century Code.
Mr. Glaser said he wondered if the committee was overreaching its power and making a change in substance. He said he thinks it should be as provided by law. He said: Suppose we pass it and somebody challenges it and says it is unconstitutional. He said: I don't think we should guess what the Supreme Court is going to do.
Judge Smith said the committee does need to keep in mind substance and form, that it does not have complete competence in substance but that there are great areas in which changes can be made. He said he thinks Mr. Glaser has this in mind more acutely than the rest of the committee and that it is good to have this pointed out from time to time as Mr. Glaser has done. He referred to Rule 40 of the federal rules, which deals with removal of federal prisoners, and read the note to subdivision (b) of the rule, as follows:
The rule provides that all removal hearings shall take place before a United States commissioner or a Federal judge. It does not confer such jurisdiction on State or local magistrates. While theoretically under existing law State and local magistrates have authority to conduct removal hearings, nevertheless as a matter of universal practice, such proceedings are always conducted before a United States commissioner or a federal judge. . . .
18 U.S.C.A., Rule 40, Notes, at 168.
Judge Smith commented that this showed that the rule makers, without directly doing so, have superseded a federal statute, but because of the reasonableness of the rule, it has become universal practice and not subject to objections.
Mr. Glaser said that he doesn't say the committee doesn't have the power, but that he would say, just for the sake of argument, there is still the question of constitutionality.
Judge Erickstad said there would always be the possibility of challenge on many rules.
Judge Smith read § 12-44-33, Convict to receive credit for labor to apply on judgment, and § 29-26-21, Judgment for fine and costs. He commented that ch. 12-44 covers jails and workhouses, and that the term convict does not necessarily mean penitentiary inmate.
Judge Burdick said that he would like to add to his motion a further amendment by adding the words or the payment of a fine in excess of five hundred dollars after the word days. Judge Smith agreed to second the addition.
Judge Burdick made the substitute motion that the action by which the committee had adopted Rule 44(a) be reconsidered and that the rule be adopted to read as follows:
Rule 44. Right to and Assignment of Counsel.
Every defendant who is charged with a public offense for which the punishment imposable by law is confinement in excess of ninety days or a fine in excess of five hundred dollars, is entitled to assigned counsel at public expense if he is unable to obtain counsel and he is entitled to have such counsel assigned to him at every stage of the proceedings from his initial appearance before the committing magistrate or the court and through appeal, unless he waives such appointment or is represented by a public defender.
The question being on Judge Burdick's motion, the motion carried, Mr. Vogel, Mr. Shaft, and Mr. Glaser voting no.
Judge Burdick moved that the action by which the committee had adopted Rule 44 be reconsidered, and that the words without undue hardship be added after the words obtain counsel. There was no second to this motion.
Mr. Vogel stated that he voted no because he thinks people in danger of going to jail are entitled to a lawyer at public expense. Mr. Shaft and Mr. Glaser said that was also their reason for voting no.
There followed a discussion of the distinction between being able to pay a lawyer and being able to employ a lawyer. The name of Fay Heasley was mentioned as that of a person who is possibly unable to employ a lawyer even though he might have the money to pay a lawyer.
Judge Ilvdeson read from the notes of the Advisory Committee on [Federal] Rules relating to Rule 44(a) as follows:
This subdivision expresses the right of the defendant unable to obtain counsel to have such counsel assigned at any stage of the proceedings from his initial appearance before the commissioner or court through the appeal, unless he waives such right. The phrase "from his initial appearance before the commissioner or court" is intended to require the assignment of counsel as promptly as possible after it appears that the defendant is unable to obtain counsel. The right to assignment of counsel is not limited to those financially unable to obtain counsel. If a defendant is able to compensate counsel but still cannot obtain counsel, he is entitled to the assignment of counsel even though not to free counsel.
18 U.S.C.A., Notes to Rule 44 (p. 170, 1969 pocket part).
The chairman appointed Judges Ilvdeson and Burdick as a sub-committee to work on reconciling Rules 44(a) and 5(b).
At 11:00 a.m. the committee recessed to permit work by subcommittees. It reconvened at 1:40 with the same persons present as in the morning.
Mr. Vogel moved that the action by which the committee had adopted Rule 32(f) be reconsidered and that it be adopted in the following wording, which Judge Burdick read:
Rule 32. Sentence and Judgment.
(f) Revocation of Probation.
Any state parole officer having probable cause to believe, or any peace officer having personal knowledge, that the defendant has violated a condition of his probation may take the defendant into custody and shall thereupon bring the defendant forthwith before the appropriate authority for a hearing on the claimed violation. Also, subject to limitations imposed by law, the court, having probable cause to believe that the defendant has violated a condition of his probation, may issue an order to show cause directed to the defendant and requiring his presence before the court, or may issue a bench warrant for the arrest of the defendant for the purpose of bringing the defendant forthwith before the court, for a hearing on the alleged violation. Upon the hearing, the court, subject to limitations imposed by law, may revoke an order suspending a sentence or an order deferring the imposition of sentence, but only if the defendant is present and apprised of the grounds on which such action is proposed.
The question being on Mr. Vogel's motion, the motion carried. [For wording of Rule 32(f) as adopted, see above.]
Judge Ilvdeson moved that the action by which the committee had adopted Rule 44 be reconsidered and the committee substitute the following rule:
Rule 44. Right to and Assignment of Counsel.
Every defendant who is charged with a public offense for which the punishment imposable by law is confinement in excess of 90 days or a fine in excess of $500.00 and who is unable to obtain counsel, is entitled to court-appointed counsel. He is entitled to have such counsel assigned to him at every stage of the proceedings from his initial appearance before the magistrate or the court through appeal, unless he waives such appointment. If the defendant is unable to pay for his own defense without undue hardship, the court-appointed counsel shall be at public expense.
Judge Erickstad said he questioned the phrase his own defense--What does it include?
Mr. Vogel said that what was left out are expert witness fees, depositions, etc.
Judge Erickstad said that our judges now allow other thing than counsel fees--witness fees, for instance.
Mr. Vogel said he thinks the committee should leave the statute in--that it is better to have the Legislature tell the counties they have to pay for these things than for the Supreme Court, through its rules, to do so.
The secretary was instructed to note that § 29-07-01.1, Appointment of counsel for indigents--Payment of expenses, should be retained, inasmuch as it is not superseded by the rule, but that it should be marked for possible legislative revision.
Judge Smith said he thinks a statute which should be amended is § 29-07-01, Magistrate's duty--Testimony may be taken. He read the section.
Mr. Vogel commented that the rule supersedes both statute in part.
Judge Burdick moved that the new draft of Rule 44 be amended by deleting the words his own defense and substituting the words such legal representation. Judge Ilvdeson seconded the motion
Mr. Glaser said what if a defendant got a lawyer and then said he could not pay. Several persons said that in such case he would make application to the judge to appoint that lawyer as his counsel at public expense.
The question being on Judge Burdick's motion, the motion carried.
Judge Smith said there is a policy question involved, that perhaps the cities should be made to pay for counsel if they are going to start charging people $500.
Mr. Glaser moved that the draft of Rule 44 be amended by deleting the word public where it first appears. Mr. Vogel seconded the motion.
Judge Burdick said he thought it should be crime or public offense.
Judge Ilvdeson said, why not just put in or violation of a municipal ordinance?
Mr. Glaser withdrew his motion, and Mr. Vogel, his second
Mr. Glaser read § 12-01-06, Definition of crime.
Judge Burdick moved that the word imprisonment be substituted the word confinement and that the words crime or be inserted in front of public offense. Judge Ilvdeson seconded the motion.
Mr. Vogel said that he is opposed to this draft of Rule 44 for reasons previously stated.
The question being on Judge Burdick's motion, Judges Burdick, Smith, Ilvdeson, and Erickstad voted aye; Messrs. Glaser, Vogel, Shaft, and Graham voted nay. The motion failed for lack of a majority.
Mr. Shaft stated that his opposition was based on his belief that if a man can be sent to jail for even one day, he should a lawyer, and if he cannot provide the lawyer himself, then he should be provided one by the court.
Mr. Graham stated that his opposition was based on § 13 of the North Dakota Constitution, as he had said at the previous meeting.
There followed a discussion of possible costs to the counties if lawyers are provided by the courts in all cases. Mr. Glaser noted that in Burleigh and Morton Counties counsel is appointed if necessary in any kind of case, and that the bill has not been large, that Burleigh spent about $400 last year.
The chairman stated that it was his opinion that the subject had been amply discussed and that he believed nobody would change his position.
Judge Burdick moved that Rule 44 be placed on the agenda for a future meeting and that no further action be taken on it at this time. Judge Smith seconded the motion. The motion carried.
Mr. Glaser moved that Rule 5(a) as reflected in the draft dated November 20 be adopted. Mr. Shaft seconded the motion. Mr. Glaser read the draft as follows:
Rule 5. Proceeding Before the Magistrate.
(a) Appearance Before the Magistrate.
(1) An officer making an arrest under a warrant issued upon a complaint for a felony shall take the arrested person without unnecessary delay before the magistrate who issued the warrant.
(2) In all other cases the arrested person shall upon his demand be taken before the nearest available magistrate who may admit him to bail for his appearance before the proper magistrate in the county or municipality in which the warrant was issued or the offense triable. A complaint shall be filed forthwith in the county where the offense was allegedly committed and a copy of the complaint shall be given to the arrested person within a reasonable time.
Mr. Shaft moved that the following be adopted as the second sentence of Rule 5(a)(2): In the absence of such demand the arrested person shall be taken before a magistrate of the county where the offense was allegedly committed. There was no second.
Judge Erickstad noted that the procedure set out in the last part is different from the present practice.
Mr. Glaser said the whole idea is simply for the purpose of fixing bail.
Judge Erickstad asked: What about probable cause?
Judge Smith said that there are three different things to be correlated or harmonized--that Rule 4 tells what the form of warrant should be; Rule 5 tells what is to be done with the person to be brought before the magistrate; and Rule 40 tells to which magistrate he should go.
After further discussion Mr. Vogel said that he would like time to read Rules 4, 5, 20, 40, and 46, and would like to defer action on any of them at this time.
Judge Burdick made the substitute motion that the action by which the committee had adopted Rule 5(a) on January 27, 1969, be reconsidered, primarily because of the second sentence. Smith seconded the motion. The motion carried.
The chairman appointed the following subcommittee to work on harmonizing Rules 4, 5, 20, 40, and 46: Mr. Glaser; Mr. Vogel; Judge Burdick; Judge Smith; Mr. Shaft. The subcommittee agreed to meet about 9:00 p.m. at Mr. Vogel's office in Mandan.
The chairman asked for an expression of opinion on Item 6 the agenda, Judge Douglas B. Heen's letter of October 14, 1969, copies of which had been distributed. Judge Heen's letter reads:
N.D.C.C. 29-15-13 provides in part as follows:
When either party to a criminal action pending in any of the district courts of this state shall file an affidavit stating that he has reason to believe and does believe that he cannot have a fair and impartial trial or hearing before the judge presiding at the term of court at which such action is to be tried, by reason of the bias and prejudice of such judge, the judge shall proceed no further in the action and thereupon shall be disqualified to do any further act in the cause. * * *
With the advent of the many refinements of criminal procedure as pronounced by the Supreme Court of the United States, it is my belief that many defendants are filing affidavits of prejudice that have no basis in fact against presiding judges. There are many reasons why a defendant takes this course of action, not the least of which is that delay is always beneficial to the defense.
The filing of an unsupported affidavit of prejudice has a disruptive effect on disposition of criminal calendars in that the assigned judge must interrupt his own schedule at some point to handle the assigned case.
It goes almost without saying that certainly a judge if prejudiced should not preside at any stage of the proceeding. However, it would appear that the federal rule does recommend itself. 28 U.S.C.A., Section 144, provides:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
Cases construing 28 U.S.C.A., Section 144, are, among others,
U.S. v. Devlin, 284 F. Supp. 477;
Grimes v. U.S., 396 F.2d 331.
[Judge Heen's letter, continued]
I request that the committee considering rules for criminal procedure of which you are chairman consider this matter of removal of the trial judge on the ground of bias and prejudice.
[closing and signature omitted]
P.S. I am aware that Section 144 is not a rule of federal procedure, but it would seem that a rule similar to Section 144 would have application to North Dakota's contemplated rules of criminal procedure.
Judge Burdick said that he wants to say that any time a judge has decided a preliminary motion in connection with a civil action, they should not be allowed to file affidavits of prejudice against him.
Mr. Vogel said he was opposed to Judge Heen's view; that he doesn't want to specify why he or his client thinks a judge is prejudiced.
The chairman said he would assign this issue to Mr. Graham--that since he has been neither in practice nor on the bench he should be without prejudice. He asked Mr. Graham to prepare a report on the problems presented by Judge Heen's letter.
There followed a discussion of criminal contempt.
Judge Smith said that he had read a comment in Time Magazine to the effect that in the past trials have progressed because the participants have at least tacitly agreed to play the game by the rules, but that because of the behavior of the Chicago _______ the rules may have to be reconsidered. He said that it may be necessary to prepare a procedure to withstand this type of behavior.
Judge Burdick mentioned Cheff v. Schnackenburg, 384 U.S. 373, 16 L. Ed. 2d 629, 86 S. Ct. 1523 (1966), in which the Supreme Court upheld a 6 months jail sentence imposed by federal court without jury trial for criminal contempt.
Mr. Vogel said that Rules 37 and 39, adopted at the last meeting, have both been abrogated in the federal rules and have been replaced by the new federal rules of appellate procedure, which cover both civil and criminal appeals. He said that he has had occasion to use them twice in the last two months, and that he has talked about them to Mr. Sand, who has read them and agrees that they are a great improvement over the state procedures and a considerable improvement over the old federal rules. He said they are much simpler and a great advance, and that he hopes that North Dakota will adopt them instead of Rules 37 and 39.
Judge Erickstad asked: Will not the Bar Association Committee have to consider the Supreme Court rules in addition to the appellate procedure rules if they are to meet the problems of the highest appellate court? Do not many of the problems apply only to intermediate appellate courts?
Mr. Vogel said that the federal rules are designed primarily for appeals from district court to circuit court of appeals.
Judge Smith noted that North Dakota has no intermediate appellate court system, but that we do have intermediate appeals.
Mr. Vogel read his draft of proposed Rule 39 as follows:
Rule 39. Supervision of Appeal.
(a) Supervision in Appellate Court. The supervision and control of the proceedings on appeal shall be in the appellate court from the time the notice of appeal is filed with its clerk, except as otherwise provided in these rules. The appellate court may at any time entertain a motion to dismiss the appeal, or for directions to the lower court, or to modify or vacate any order made by the lower court or by any judge in relation to the prosecution of the appeal, including any order fixing or denying bail.
(b) The Record on Appeal.
(1) Preparation and Form. The rules and practice governing the preparation and form of the record on appeal in civil actions shall apply to the record on appeal in all criminal proceedings, except as otherwise provided in these rules.
(2) Use of Typewritten Record. Appellate courts shall review the proceedings on the typewritten record.
(c) Docketing of Appeal and Record on Appeal. The record on appeal shall be filed with the appellate court and the proceeding there docketed within 40 days from the date the notice of appeal is filed in the lower court but if more than one appeal is taken from the same judgment to the same appellate court, the lower court may prescribe the time for filing and docketing, which in no event shall be less than 40 days from the date the first notice of appeal is filed. In all cases the lower court or the
appellate court or, if the appellate court is not in session, any judge thereof may for cause shown extend the time for filing and docketing.
(d) Setting the Appeal for Argument. Unless good cause is shown for an earlier hearing, the appellate court shall set the appeal for argument on a date not less than 30 days after the filing in that court of the record on appeal and as soon after the expiration of that period as the state of the calendar will permit. Preference shall be given to appeals in criminal cases over appeals in civil cases.
Judge Burdick read from the draft of the Commissioners on Uniform State Laws as follows:
Rule 48. Supervision of Appeal.
(a) Supervision in appellate court. The supervision and control of the proceedings on appeal shall be in the appellate court from the time the notice of appeal is filed with its clerk, except as otherwise provided in these rules. The appellate court may at any time entertain a motion to dismiss the appeal or for directions to the trial court or to modify or vacate any order made by the trial court or by any judge in relation to the prosecution of the appeal, including any order fixing or denying bail.
[Rule 48, draft of Commissioners on Uniform State Laws, continued]
(b) The record on appeal. The rules and practice in civil actions governing the preparation and form of the record and brief on appeal and filing thereof with the appellate court shall apply to the record and briefs on appeal in all criminal proceedings, except as otherwise provided in these rules.
(c) Setting the appeal for argument. Unless good cause is shown for an earlier hearing, the appellate court shall set the appeal for argument not less than [ ] days after the filing in that court of the record on appeal and as soon after the expiration of that period as the state of the calendar will permit. Preference shall be given to appeals in criminal cases over appeals in civil cases.
Uniform Rules of Criminal Procedure, drafted by the Natl. Conference of Commissioners on Uniform State Laws, at 44-45 (1952).
Judge Erickstad said he would be interested to know what changes have been made in the new federal appellate rules.
Mr. Vogel said that Rules 10, 11, and 12 of the federal appellate rules, entitled The Record on Appeal, Transmission of the Record, and Docketing the Appeal; Filing of the Record, are more detailed.
Judge Burdick noted that Rule 4(b) [of the federal appellate rules], dealing with appeals in criminal cases, relates to our Rule 37, Taking Appeal.
Mr. Glaser said that U. S. Supreme Court Rules 12 and 13 are similar to the subject matter and that No. 43 deals with call and order of the calendar, which, he assumes, is equivalent to setting the case for argument.
Mr. Vogel said that with great reluctance he would move the adoption of the draft of Rule 39. Mr. Graham seconded the motion.
Judge Erickstad said he would like to get back to the original language of the Federal Rules 37 and 39. There follows a discussion of possible conflicts between Rules 37 and 39.
Mr. Vogel said that part of the basic concept [of the federal appellate rules] is that you don't necessarily send everything up. Sometimes a transcript is sent in its entirety; sometimes only an appendix is sent-the transcript is still available if they want to use it.
Mr. Vogel read Rule 10 of the federal appellate rules as follows:
Rule 10. The Record on Appeal.
(a) Composition of the Record on Appeal. The original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court shall constitute the record on appeal in all cases.
[Rule 10, Federal Rules of Appellate Procedure, continued]
(b) The Transcript of Proceedings; Duty of Appellant to Order; Notice to Appellee if Partial Transcript is Ordered. Within 10 days after filing the notice of appeal the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. Unless the entire transcript is to be included, the appellant shall, within the time above provided, file and serve on the appellee a description of the parts of the transcript which he intends to include in the record and a statement of the issues he intends to present on the appeal. If the appellee deems a transcript of other parts of the proceedings to be necessary he shall, within 10 days after the service of the statement of the appellant, file and serve on the appellant a designation of additional parts to be included. If the appellant shall refuse to order such parts, the appellee shall either order the parts or apply to the district court for an order requiring the appellant to do so. At the time of ordering, a party must make satisfactory arrangements with the reporter for payment of the cost of the transcript.
(c) Statement of the Evidence or Proceedings When no Report Was Made or When the Transcript is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within 10 days after service. Thereupon the
statement and any objections or proposed amendments shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerk of the district court in the record on appeal.
(d) Agreed Statement as the Record on Appeal. In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the district court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the court may consider necessary fully to present the issues raised by the appeal, shall be approved by the district court and shall then be certified to the court of appeals as the record on appeal and transmitted thereto by the clerk of the district court within the time provided by Rule 11. Copies of the agreed statement may be filed as the appendix required by Rule 30.
(e) Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the district court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the district court, either before or after the record is transmitted to the court of appeals, or the court of appeals,
[Rule 10, Federal Rules of Appellate Procedure, continued]
on proper suggestion or of its own initiative, may direct that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the court of appeals.
Judge Erickstad [referring to subdivision (a)] asked: what significance do docket entries have?
Mr. Vogel said that in the lower court it is really an index. The clerk photocopies docket entries relating to the case.
Judge Burdick said he believes the reference in Rule 39(c) to 40 days is in conflict with Rule 37.
The chairman said he believed the matter should be postponed for further study, and that he would like Mr. Sand to work on it also.
Judge Burdick said it should be kept in mind that the transcript may not be available within a five-day period.
Mr. Vogel distributed his report on plea bargaining, which reads as follows:
I find that my work has been simplified, or perhaps made unnecessary, by the labors of the American Bar Association project on minimum standards for criminal justice, resulting in their "Standards relating to pleas of guilty." I recommend the reading of those standards to all members of the committee.
It is essential that the original pamphlet, described as "Tentative Draft," be read in connection with the supplement, which modifies it in important respects.
These standards, if adopted, would accomplish what I have been arguing for--among other things, a recognition that plea bargaining does exist, a record of the results of the plea bargaining, non-participation by the judge in the bargaining but approval by the judge of the result or, if he does not approve, an opportunity to withdraw any plea of guilty previously made.
Such a procedure will do much to eliminate the frequent claims that pleas of guilty were induced by promises which were not kept. It will eliminate the hypocrisy involved in leading a defendant to expect that a certain sentence will be given and then asking him to deny that any promises or representations have been made to him. It will not dry up the pleas of guilty which are now received in reliance on promises or near promises of a certain sentence. And it will give the court an opportunity to regulate a practice which has been unregulated because the courts did not want to recognize its existence.
Assuming a majority of the committee agrees with me (perhaps a presumptuous assumption), the problem arises as to the method of implementing the minimum standard. I am of the opinion that it should not be necessary to adopt
[Mr. Vogel's report on plea bargaining, continued]
the entire language of the minimum standard as a part of the rules of criminal procedure. Perhaps we could add a note to Rule 11 (relating to pleas) stating that the procedure recommended in the American Bar Association project on minimum standards for criminal justice, standards relating to pleas of guilty, are recommended and approved by the court. Or, when we reach Rule 57(b) we could add a similar statement to it.
The matter of plea bargaining is also touched upon in other recommended minimum standards. For example, Paragraph 5.3 of Standards relating to sentencing alternatives and procedures, and Paragraph 1.3 of standards relating to joinder and severance.
Judge Burdick asked: Should we not work at these rules in light of the Minimum Standards for Criminal Justice of the American Bar Association? After some discussion he agreed to get copies of the adopted standards for all those who do not have them.
Mr. Vogel read from the Approved Draft, 1968, of the American Bar Association Project on minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty, in regard to plea bargaining. [Copies of the Approved Draft will be furnished to committee members as soon as possible.]
Mr. Shaft moved that the next two meetings be held on January 28-29-30 and March 12-13-14, beginning at 1:00 p.m. on the first day of each session and continuing through noon of the third day. Judge Burdick seconded the motion. The motion carried.
The committee went into recess at 4:25 p.m. on November 20.
The committee reconvened at 9:12 a.m. on November 21, with the same persons present as on the previous day.
The chairman called for a report from the subcommittee which had met on the previous evening.
Judge Burdick moved that the action by which Rule 4(a)(1) had been adopted be reconsidered and that the rule be adopted with the following amendment: In the first sentence delete the word or where it first appears; delete the word the before the word examination; delete the first comma, the words if any, and the second comma after the word oath; and insert the words upon the complaint before the word shall. Mr. Vogel seconded the motion. The motion carried. Rule 4(a)(1) as adopted reads:
Rule 4. Warrant or Summons Upon Complaint.
(1) Warrant. If it appears to the magistrate, from the complaint, from examination under oath of the complainant or other witnesses, or from an affidavit or affidavits 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 shall issue to any officer authorized by law to execute it. If the magistrate before whom the complaint is made is someone other than a judge of the Supreme Court, district court, or county court of increased jurisdiction, he shall not issue a warrant 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 the accused is likely to abscond before the prosecuting attorney can approve the complaint, and the magistrate so certifies on the complaint, a warrant may issue without approval of the prosecuting attorney.
Judge Burdick moved that the action by which the committee had adopted Rule 4(b)(1) be reconsidered and that it be adopted with the following amendment: At the beginning of the fifth sentence delete the words If the offense charged is triable in the county in which the warrant issues, the warrant and insert in lieu thereof the word It; also in the fifth sentence delete the words forthwith before the magistrate issuing the warrant or another magistrate therein designated or, in the event of his
absence or inability to act,; also in the fifth sentence delete the semicolon after the word magistrate and insert in lieu thereof a period and delete the rest of the sentence; in the sixth sentence after the word bail insert the words recommended or acceptable. Judge Smith seconded the motion.
Judge Burdick explained that the purpose of the change is to allow the accused to be brought before the nearest magistrate, who can do any of three things, which are brought out in succeeding sections.
There followed a discussion of how the rule would operate with particular reference to its application in areas where there are several magistrates. It was agreed that it would be workable.
The question being on Judge Burdick's motion, the motion carried. Rule 4(b)(1) as adopted reads:
Rule 4. Warrant or Summons Upon Complaint.
(1) Warrant. The warrant shall be in writing, in the name of the State of North Dakota, and be signed by the issuing magistrate with the title of his office. It shall state the date when issued and the municipality or county where issued. It shall specify the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. It shall describe the offense charged against the defendant. It shall command that the defendant be arrested and brought before the nearest available magistrate. The warrant may also have endorsed upon it the amount of bail recommended or acceptable if the offense is bailable.
Judge Burdick moved that Rule 4 be adopted as amended. Graham seconded the motion. The motion carried.
Judge Burdick moved that the action by which the committee had adopted Rule 5(a) be reconsidered, and that it be adopted with the following amendment: In the first sentence after the
word officer insert the words or other person; also in the first sentence before the word magistrate insert the words nearest available; also in the first sentence insert a period after the word magistrate and delete the rest of the sentence; delete the second sentence; in the third sentence delete the comma after the word committed, insert a period, and delete the rest of the sentence; add a fourth sentence to read A copy of the complaint shall be given within a reasonable time to the arrested person and to any magistrate before the defendant is brought, if other than the magistrate with whom the complaint is filed.
Judge Burdick explained that the change was to follow the philosophy of the previous amendment of bringing the defendant before the nearest available magistrate without delay.
Mr. Vogel and Mr. Graham seconded the motion. The motion carried. Rule 5(a) as adopted reads:
Rule 5. Proceedings Before the Magistrate.
(a) Appearance Before the Magistrate.
An officer or other person making an arrest shall take the arrested person without unnecessary delay before the nearest available magistrate. If a person arrested without a warrant is brought before a magistrate, a complaint shall be filed forthwith in the county where the offense was allegedly committed. A copy of the complaint shall be given within a reasonable time to the arrested person and to any magistrate before whom the defendant is brought if other than the magistrate with whom the complaint is filed.
Judge Burdick moved that the action by which the committee had adopted Rule 5(c)(1) be reconsidered, and that it be adopted with the following amendment: Delete the word the where it appears before the word court and insert in lieu thereof the word a; after the word court insert the words of the county; delete the words is triable and insert in lieu thereof the words was allegedly committed. Mr. Graham seconded the motion.
There followed a discussion of the operation of the rule in cases in which the offense is committed near the county line or while in transit. It was decided that there would be no problems.
The question being on Judge Burdick's motion, the motion carried. Rule 5(c)(1) as adopted reads:
Rule 5. Proceedings Before the Magistrate.
(c) The Preliminary Examination.
(1) The defendant shall not be called upon to plead. If the defendant waives preliminary examination, the magistrate shall hold him to answer in a court of the county in which the offense was allegedly committed and shall admit him to bail, as provided by these rules.
Judge Burdick moved that the action by which the committee had adopted Rule 5(c)(2) be reconsidered, and that it be adopted with the following amendment: In the first sentence delete the word the before
the word magistrate and insert in lieu thereof the word a, and after the word magistrate insert the words of the county in which the offense was allegedly committed; in the second sentence insert the word testifying after the word witnesses; in the sixth sentence delete the word when and insert in lieu thereof the word If. Mr. Glaser seconded the motion.
Judge Erickstad asked: What is the effect of the first change?
Judge Burdick replied that it makes it clear that if the defendant is arrested and brought before a magistrate in Cass County on a Ward County crime, preliminary examination is to be held in Ward County, not in Cass.
Judge Smith remarked that the change would result in more communications between counties being necessary, but that with the teletype, there should be no difficulties. He said he thinks the sheriffs' offices would be the logical people to handle it. He said that perhaps there should be some comment in the committee's papers, when it forwards them, that the communications problems are taken care of. He said he would like to have the committee approve some form of warrant that can be transmitted by teletype and would be considered sufficient to hold a person on.
The question being on Judge Burdick's motion, the motion carried. Rule 5(c)(2) as adopted reads:
Rule 5. Proceedings Before the Magistrate.
(c) The Preliminary Examination.
(2) If the defendant does not waive preliminary examination, a magistrate of the county in which the offense was allegedly committed shall hear the evidence within a reasonable time. The defendant may cross-examine witnesses testifying against him and may introduce evidence in his own behalf. The magistrate shall issue such process as may be necessary to summon witnesses for either the State or the defendant. A verbatim record of the proceedings in the preliminary hearing shall be made under the direction of the magistrate if a request therefor is made by either the State or the defendant. A copy of a transcript of such record of proceedings shall be furnished to the defendant and to the State if either party requests the same. If a transcript is requested by the defendant, its cost shall be borne by the county wherein the venue of the alleged offense was originally laid if the magistrate finds that the defendant is financially unable to pay for it without undue hardship. If from the evidence it appears to the magistrate that there is probable cause to believe that a public offense has been committed and that the defendant committed it, the magistrate shall hold him to answer in the district court; otherwise the magistrate shall discharge him. The magistrate shall admit the defendant to bail as provided in these rules.
Judge Burdick moved that the action by which the committee had adopted Rule 5(d) be reconsidered, and that it be adopted with the following amendment: After the word or insert the word upon. Mr. Glaser seconded the motion. The motion carried. Rule 5(d) as adopted reads:
Rule 5. Proceedings Before the Magistrate.
(d) Transmission of Papers. At the conclusion of the preliminary examination or upon the waiver thereof the magistrate shall transmit forthwith to the clerk of the court having jurisdiction of the offense all papers in the proceedings, any bail taken by him, and all exhibits received at the examination.
Judge Burdick moved that Rule 5 be adopted as amended. Mr. Graham seconded the motion. The motion carried.
There followed a brief discussion of whether Rule 40 (federal rule title: Commitment to Another District; Removal) should be retained. Mr. Glaser agreed to continue his study of the question and to report at some future date. Mr. Glaser moved that the number 40 be retained and kept open (as in the case of the number 6). Mr. Shaft seconded the motion. The motion carried.
Mr. Glaser said that while on the subject of preliminary hearings, one thing that had occurred to him is that these rule do not say anything about when preliminary hearing should be held. He asked: Should we leave it? He read § 29-07-05, The preliminary examination.
Mr. Graham said that the rule says "within a reasonable time."
Judge Burdick moved that the action by which the committee had adopted Rule 4 be reconsidered for the purpose of amendment. Mr. Graham seconded the motion. The motion carried.
Judge Burdick moved that Rule 4(d) be amended by deleting the words and shall be canceled by him from the second sentence and inserting the words who shall cancel it in lieu thereof. The motion carried. Rule 4(d) as adopted reads:
Rule 4. Warrant or Summon Upon Complaint.
(d) Return. The officer executing a warrant shall make return thereof to the magistrate before whom the defendant is brought pursuant to Rule 5. At the request of the prosecuting attorney an unexecuted warrant shall be
returned to the magistrate by whom it was issued, who shall cancel it. On or before the return day the person to whom a summons is delivered for service shall make return thereof to the magistrate before whom the summons is returnable. At the request of the prosecuting attorney made while a complaint is pending, a warrant returned unexecuted and not cancelled, or a summons returned unserved, or a duplicate thereof, may be delivered by the magistrate to a peace officer for execution or service.
Judge Burdick moved that Rule 4 be adopted as amended. Mr. Vogel seconded the motion. The motion carried.
The chairman called on Judge Smith to read his draft of Rule 41. Judge Smith (quoting Lord Byron to the effect that when he had written the draft, God and he knew what he had in mind--now only God knew) read the draft as follows:
Rule 41. Search and Seizure.
(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a magistrate authorized by law to act within the county wherein the property sought is located.
(b) Grounds for Issuance. A warrant may be issued under this rule to search for and seize any property:
(1) Stolen or embezzled in violation of the laws of this or any other state or of the United States; or
(2) Designed or intended for use as a means of committing a criminal offense, or which is or has been so used.
(c) Issuance and Contents. A search warrant can be issued only upon probable cause, supported by affidavit naming or describing the person, and particularly describing the property and place to be searched. If the magistrate is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The warrant shall be directed to and executed by a peace officer of this state, and by no other persons except in aid of the officer, on his requiring it, he being present and acting in its execution. It shall state the grounds or probable cause for its issuance and the names of each person whose affidavit has been taken in support thereof. It shall command the officer to search forthwith the person or place named for the property specified. The warrant shall direct that it be served in the daytime, but if the affidavit or affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time. It shall direct that all property seized under the warrant be returned to the magistrate who issued the warrant.
(d) Execution and Return with Inventory. The warrant may be executed and returned only within 10 days after its date. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken, or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall 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 in the presence of at least one credible person other than the applicant for the warrant or the person from whom, or from whose premises, the property was taken. It shall be subscribed and sworn to by the officer before the magistrate to whom it is returned. The magistrate shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.
(e) motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground
[judge Smith's draft of Rule 41]
that (1) the property was illegally seized without warrant or (2) the warrant is insufficient on its face, or (3) the property seized is not that described in the warrant, or (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, or (5) the warrant was illegally executed. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial. The motion to suppress evidence may also be made in the district where the trial is to be had. The motion shall be made before trial or hearing unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.
(f) Return of Papers to Clerk. The magistrate who has issued a search warrant shall attach to the warrant a copy of the return, inventory and all other papers in connection therewith and shall file them with the clerk of the district court for the county in which the property was seized.
(g) Scope and Definition. This rule does not prohibit any other act, otherwise inconsistent with it, by which property may be taken on a search warrant from any house or other place in which it is concealed, or from the possession of the person by whom it was stolen, embezzled, or used in the commission of a criminal offense, or of any other person in whose possession it may be. Nor shall this rule prohibit the taking of property under a search warrant when it is in the possession of any person with the intent to use it as a means of committing a public offense, or in the possession of another to whom he may have delivered it for the purpose of preventing its being discovered, and in such cases it may be taken on the warrant from such person, or from a house or other place occupied by him or under his control, or from the possession of the person to whom he may have delivered it. The term "property" is used in this rule to include documents, books, papers and any other tangible objects.
(h) Execution of Warrant--Use of Force. An officer directed to serve a search warrant may break open an outer or inner door or window of a house, or other place to be searched, or any part thereof, or anything therein, to execute the warrant, if, after notice of his authority and purpose he is refused admittance. To execute a search warrant, an officer may break open any outer or inner door or window of a house, or other place to be searched, for the purpose of liberating a person who, having entered to aid him in the execution of the warrant, is detained therein, or when necessary for his own liberation.
Judge Smith moved that Rule 41 be adopted as read. Judge Burdick seconded the motion.
Judge Burdick moved to amend Rule 41(a) as follows: After the word located and before the period insert the words or from which it has been removed. Judge Smith seconded the motion. The motion carried.
Judge Smith moved to amend Rule 41(b) as follows: Delete the colon after the word property; delete the parenthetical numerals 1 and 2; change the upper case letters S in Stolen and D in Designed to lower case letters.
There followed a discussion of contraband and whether it was covered by the rule.
Judge Burdick mentioned Application of Houlihan, 31 F.R.D. 145 (D.N.D. 1962), in which Judge Davies held that a search warrant issued by a Cass County Court judge for execution in Grand Fork County was illegal and invalid. Judge Davies said (at 149): "Property not being used as the means of committing a crime is not properly the subject of a search warrant. The property is merely evidentiary material, and search for evidence as such, violates the Fourth Amendment to the Constitution. Gouled v. United States. . . ."
Judge Ilvdeson read § 29-29-05, Requisites of search warrant.
Judge Smith read from the study material relating Rule 41, at p. 7, the reference to Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967), as follows:
The Court, per Mr. Justice Brennan, rejected the "mere evidence" rule as set forth in such cases as Gouled v. United States, 255 U.S. 298, and Harris v. United States, 331 U.S. 145. Evidence seized in a legal search is admissible even though it has only evidentiary value, i.e., even though its not contraband, fruit of the crime, or an instrumentality of the crime, etc. The Court stated at p. 1647: "Nothing in the language of the Fourth Amendment supports the distinction between 'mere evidence' and instrumentalities, fruits of crime, or contraband. On its face, the provision assures the 'right of the people to be secure in their persons, houses, papers, and effects . . .,' without regard to the use to which any of these things are applied. This 'right of the people' is certainly unrelated to the 'mere evidence' limitation. Privacy is disturbed no more by a search directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit, or contraband. A magistrate can intervene in both situations, and the requirements of probable cause and specificity can be preserved intact." The Gouled categories of evidentiary material subject to seizure have been incorporated into Rule 41(b). This case would add merely evidentiary material to the categories set forth in Rule 41(b). Mr. Justice Douglas dissented on the basis that the Fourth Amendment was designed to abrogate the evil of the "general warrant" which allowed searches to be made which had as their object the finding of any incriminating evidence whatsoever. Such seizures violate the Fifth Amendment's proscription against self-incrimination. Further, the Fourth Amendment creates a zone of privacy. Justice Douglas stated: "This right of privacy, sustained in Griswold, is kin to the right of privacy created by the Fourth Amendment. That there is a zone that no police can enter--whether in 'hot pursuit' or armed with a meticulously proper warrant--has been emphasized by Boyd and by Gouled. They have been consistently and continuously approved. I would adhere to them and leave with the individual the choice of opening his private effects (apart from contraband and the like) to the police or keeping their contents a secret and their integrity inviolate."
Judge Smith noted that according to the material he had just read, apparently Application of Houlihan has been overruled.
Mr. Graham asked: Would there be any harm in adding a phrase saying something like "the possession of which is an offense"?
Judge Erickstad remarked that such an insertion might limit the rule rather than broaden it. Judge Smith agreed.
Mr. Vogel said that a case involving contraband, one dealing with materials used to carry on gambling, was Marderosian v. United States, 337 F.2d 759 (1st Cir. 1964), certiorari denied 380 U.S. 971.
Mr. Graham suggested that it might be possible that in a particular type of crime--for instance, offenses having to do with drugs--the statutes might set out search and seizure provisions for that specific offense that are not modified by the rule on search and seizure.
Mr. Vogel noted that there was a specific statute dealing with automobiles used in smuggling.
There followed a discussion of the problems of search and seizure.
Mr. Vogel said that he has no objection to any part of the rule as it stands now.
Judge Ilvdeson read from the notes to Rule 41 of the federal rules as follows:
An officer engaged in a lawful search is not confined to seizing only those items described in the warrant, especially where unlisted items seized are instrumentalities of a crime, and although U.S.C.A. Const. Amend. 4 provides that the warrant must particularly describe the things to be seized, given a lawful search, some things may be seized in connection therewith that are not described in the warrant. Johnson v. U. S., 293 F.2d 539, 110 U. S. App. D. C. 351, Cert. denied 375 U. S. 888 11 L. Ed. 2d 118, 84 S. Ct. 167 (1961).
18 U.S.C.A., Rule 41, Note 20 (1969 pocket part at 115).
Judge Smith read the dictionary definition of contraband from Webster's New International Dictionary (2d ed.).
There followed further discussion of whether contraband is covered in the proposed Rule 41(b).
Judge Burdick said he thought there should be a third phrase "or constituting contraband."
At the chairman's request, Mr. Axtman read the following:
One lower federal court has taken the view that Harris is confined to cases of search without a warrant and has held that even contraband may not be seized unless described in the warrant. United States v. Coots, 196 F. Supp. 775 (E.D. Tenn. 1961). What sense would such a distinction make? In contrast, Johnson v. United States, 293 F.2d 539 (D.C. Cir. 1961), held that instrumentalities of crime may be seized although
the warrant for the search does not list them. See also United States v. Teller, 397 F.2d 494, 497 (7th Cir. 1968), where the court found lawful the seizure of narcotics in the defendant's purse which, as part of a dwelling, was searched under a warrant issued for money concealed by her husband: "Where entry upon the premises was authorized, nothing in the Fourth Amendment inhibits the seizure by law enforcement agents of contraband, the possession of which is a crime.
Sanford H. Kadish and Monrad G. Paulsen, Criminal Law and Its Processes (2d ed.; Boston and Toronto: Little, Brown § Co., 1969), p. 838.
Mr. Glaser asked: Why not solve the problem by putting it in?
Judge Smith and Judge Erickstad both said they believed it would limit the rule, referring to Sutherland on Statutory Construction.
Mr. Glaser said: If you simply add on contraband, you don't limit it.
Mr. Graham noted that the cases so far mentioned had not dealt with issuance of a warrant.
The chairman suggested that Mr. Glaser write a letter to Judge Smith setting out exactly what he thought should be contained.
Judge Burdick moved that after the word seize in the second line [of Rule 41(b)] the word contraband or be added. Mr. Glaser seconded the motion.
Judge Smith moved that further action be deferred until the next meeting. Mr. Graham seconded the motion. The motion carried.
The secretary suggested that she retype Rules 4 and 5 in their entirety and furnish copies on different color paper from any previously used (original adoptions are now reproduced on green paper and first revisions on blue). It was agreed that this would be satisfactory, and she was instructed to also furnish a color key.
Judge Burdick moved that the committee adjourn. The motion carried. The meeting adjourned at 12:03 p.m.
Rebecca Quanrud, Secretary