(1) Warrant. If it appears from the complaint, or from an affidavit filed with the complaint, or from a written declaration made and subscribed under penalty of perjury, that there is probable cause to believe that a criminal offense has been committed by the defendant, the magistrate must issue an arrest warrant to an officer authorized by law to execute it. [Except as provided in subdivision (a)(2).] The finding of probable cause must be based upon evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. Before ruling on a request for a warrant, the magistrate may examine under oath the complainant and any other witnesses produced, in which case the proceedings must be recorded. A magistrate who has not been admitted to practice law in this state may 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 that the accused is likely to abscond before the prosecuting attorney can approve the complaint, and the magistrate so certifies on the complaint, the magistrate may issue a warrant without approval of the prosecuting attorney.
(2) Summons. The magistrate may issue a summons in lieu of a warrant if the magistrate has reason to believe that the defendant will appear in response to it or if the defendant is a corporation.
(3) Failure of Defendant to Appear After Summons. If a defendant fails to appear in response to a summons or there is reasonable cause to believe that the defendant will fail to appear, a magistrate must issue an arrest warrant. If a defendant corporation fails to appear in response to a summons, a magistrate who is empowered to try the offense for which the summons was issued must enter a plea of not guilty and may proceed to trial and judgment without further process; a magistrate who is not so empowered must proceed as though the defendant had appeared.
(4) Additional Warrants or Summonses. A magistrate may issue more than one warrant or summons on the same complaint.
(5) Warrant or Summons by Telephone or Other Reliable Electronic Means. In accordance with Rule 4.1, the magistrate may issue a warrant or summons based on information communicated by telephone or other reliable electronic means.
(1) Warrant. A warrant must:(A) be in writing, in the name of the State of North Dakota;(B) be signed by the issuing magistrate with the title of the magistrate's office;(C) state the date of issuance and the municipality or county where issued;(D) contain the defendant's name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty;(E) describe the offense charged against the defendant; and(F) command the defendant be arrested and brought before the nearest available magistrate.The warrant may also have endorsed upon it the recommended or acceptable amount of bail if the offense is bailable.
(2) Summons. A summons must be in the same form as the warrant except that it must require the defendant to appear before a magistrate at a stated time and place and must inform the defendant that if the defendant fails to appear, an arrest warrant will issue.
(c) Execution; Service.
(1) Execution of Warrant. The warrant is directed to all peace officers of this state and may be executed only by a peace officer. It is executed by the arrest of the defendant and may be executed in any county of the state by any peace officer of this state. Upon arrest, an officer possessing the original or a duplicate original warrant must show it to the defendant immediately upon request. If the officer does not possess the warrant at the time of the arrest, the officer must inform the defendant of the warrant's existence and of the offense charged and, at the defendant's request must show the original or a duplicate original warrant or a copy to the defendant as soon as possible.
(2) Service of Summons. The summons must be served in the manner provided for service of a summons in a civil action. Any person authorized to serve a summons in a civil action may serve a summons.
(1) After executing a warrant, the officer must return it to the magistrate before whom the defendant is brought in accordance with Rule 5. The officer may do so by reliable electronic means. At the request of the prosecuting attorney, an unexecuted warrant must be returned to and canceled by the magistrate who issued it.
(2) The person to whom a summons is delivered for service must return it to the magistrate before whom the summons is returnable on or before the return day.
(3) At the request of the prosecuting attorney made while a complaint is pending, a magistrate may deliver an unexecuted warrant, an unserved summons, or a copy of the warrant or summons to a peace officer for execution or service.
(e) Defective Warrant or Summons; Amendment. No person arrested under a warrant or appearing in response to a summons may be discharged from custody or dismissed because of any informality in the warrant or summons, but the warrant or summons may be amended to remedy the informality.
Subdivision (a) is derived from the Fed.R.Crim.P. 4. The most important aspect of subdivision (a) is the provision that a warrant for arrest may issue under this rule only if it appears from the complaint, from an examination under oath, or from any affidavit filed with the complaint, that there is probable cause for the magistrate to believe that a criminal offense has been committed by the defendant.
Subdivision (a) was amended, effective March 1, 2017, to allow a magistrate, in determining probable cause, to rely on a written declaration made and subscribed under penalty of perjury by a licensed peace officer. This amendment facilitates submission of electronic documents to establish the grounds for a warrant or summons. Any electronic signature on a document submitted under this rule by a licensed peace officer is considered to be that of the officer.
Subdivision (a) was amended, effective September 15, 2019, to remove language limiting the use of unsworn declarations to peace officers. N.D.C.C. ch. 31-15 allows anyone to make an unsworn declaration that has the same effect as a sworn declaration. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.
Subdivision (a) further provides that a warrant or summons may issue on the basis of hearsay evidence provided the magistrate has adequate reason to believe that the hearsay information is both credible (truthful) and reliable (accurate). These provisions are deemed to be declaratory of existing law. The probable-cause provision must be read in light of the Fourth Amendment. The provision for hearsay merely prescribes the standard of credibility and reliability. It does not attempt to identify the situations in which evidence in the complaint is in fact adequate to meet the twin tests of credibility and reliability. This is an issue which must be dealt with on a case-to-case basis, taking into account the unlimited variations and sources of information and the opportunity of the informant to perceive accurately the factual data which the informant furnishes.
Subdivision (a) makes clear that the magistrate may require the complainant to appear personally and may examine the complainant or witnesses to determine whether probable cause exists. If the magistrate does hear from the complainant or witnesses, the testimony must be recorded. This is to insure that there exists an adequate basis for reviewing the propriety of the issuance of the warrant, if, for example, its issuance should be attacked upon a subsequent motion to suppress evidence seized incident to the arrest. Subdivision (a) is also intended to make it possible for the magistrate to issue a summons in lieu of an arrest warrant even though not requested to do so by the prosecuting attorney.
Subdivision (a) also provides that where the magistrate is someone other than a person admitted to practice law in this state, the magistrate shall not issue a warrant until the complaint has been approved by the prosecuting attorney. This provision is intended to guard against non-law-trained magistrates, who because of their lack of legal expertise may have a problem with the requirement of probable cause. Subdivision (a), however, does provide that a warrant may be issued by such magistrate without the approval of the prosecuting attorney where the magistrate reasonably believes that the accused is likely to abscond the jurisdiction before the prosecuting attorney can approve the complaint, provided the magistrate so certifies on the complaint.
Paragraph (a)(2) provides the magistrate with some latitude in the exercise of discretion to issue the summons in cases where the magistrate reasonably believes that the defendant will appear in response to the summons. Paragraph (a)(2) also provides for the magistrate to issue a summons rather than a warrant where the defendant is a corporation. It provides that a summons will issue to a corporate defendant because as a practical matter it is not literally possible to make an arrest. Furthermore, the probability is that the corporation will appear and that the crime is not one of violence.
Paragraph (a)(3) provides a remedy in cases where the defendant fails to answer the summons. It follows the provisions of both Fed.R.Crim.P. 4 (a) and the Model Code of Pre-Arraignment Procedure. This paragraph also provides for anticipatory remedy where there is failure of the summonee to appear.
Paragraph (a)(4) provides for the issuance of more than one warrant or summons on the same complaint. The provision for issuance of additional warrants on the same complaint embodies the practice provided in Fed.R.Crim.P. 4(a). When a complaint names several defendants, it may be desirable to issue separate warrants to each defendant in order to facilitate service and return, especially if the defendants are apprehended at different times and places.
Paragraph (a)(5) was added, effective March 1, 2013, to allow the magistrate to issue a warrant or summons based on information communicated by telephone or other reliable electronic means under the procedure set out in Rule 4.1.
Paragraph (b)(1) describes the form of the warrant. This paragraph requires that the warrant be in writing, that it be in the name of the State of North Dakota, and that it be signed by the issuing magistrate with the title of the magistrate's office. This differs from Fed.R.Crim.P. 4(b), in that the federal rule does not provide for the warrant to be in writing nor does it provide that it be in the name of the jurisdiction. The federal rule further differs in that it does not require that the signature of the issuing officer bear that officer's title, nor does it state the date when issued and the municipality or county where issued. The provision for the issuance of a warrant contemplates that the warrant will be issued in counties other than where the offense occurred.
The provision that the warrant be in the name of the State of North Dakota or in the name of a municipality, if the violation of a municipal ordinance is charged, is consistent with these rules in providing for the issuance of a warrant for violations of municipal ordinances which are deemed criminal in nature. The provision for description of the offense charged satisfies the constitutional requirement that notice be given to the defendant of the offense charged.
The final provision of paragraph (b)(1) indicates that bail may be endorsed upon the warrant. The provision that a recommendation of an amount of bail acceptable be included in the warrant reflects the notion that the magistrate issuing the warrant is in a better position to determine the bail requirement than would be the nearest available magistrate to whom the defendant is brought, if not the issuing magistrate. The requirement that upon arrest the defendant be brought before the nearest available magistrate is adapted from the criminal rules of Alaska.
Paragraph (b)(2) provides that a summons will be in the same form as a warrant (in writing signed by the magistrate who issued it, etc.) and that it contain a warning that failure to respond to it will establish grounds for the issuance of a warrant.
Subdivision (c) directs that the warrant shall be directed to all peace officers of this State and further provides for its execution. The provision that the arresting officer need not have the warrant in possession at the time of the arrest is rendered necessary by the fact that a fugitive may be discovered and apprehended by any officer. It is impossible for a warrant to be in the possession of every officer who is searching for a fugitive or who unexpectedly might be in a position to apprehend a fugitive.
Paragraph (c)(2) provides for service of summons in substantially the same manner as civil actions under N.D.R.Civ.P. 4. This rule provides essentially the same requirements as Fed.R.Civ.P. 4(c)(1). Provisions for ease of service in the case of a summons reflect the fact that the individual's right to remain at liberty is not infringed.
Subdivision (d) governs the return of the warrant or summons and is essentially the same as Fed.R.Crim.P. 4(c)(4). The return is not conclusive and an error in the return does not void the warrant, where no one was misled thereby, and facts stated in the return will not be accepted where testimony shows them to be untrue. This subdivision provides that in the case of an unexecuted warrant and upon request of the prosecuting attorney, the warrant shall be returned to the magistrate who issued it for cancellation. It further provides that a person to whom the summons was delivered shall appear on or before the return date stated on the face of the summons. Finally, subdivision (d) permits reissuance, upon request of the prosecuting attorney, of warrants which have been initially returned unexecuted but which have not been canceled, to be delivered to a peace officer for execution or service.
Subdivision (d) was amended, effective March 1, 2013, to allow the officer to return the warrant to the magistrate by reliable electronic means.
Subdivision (e) provides a remedy in cases where the warrant or summons is defective. It permits the prosecution to cure a defect which is deemed an informality in the warrant. There shall, however, be dismissal where the warrant is not sufficient on its face.
Rule 4 was amended, effective March 1, 2006, 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 26, 2019, pages 8-10; September 24-25, 2015, page 28; January 26-27, 2012, page 25-26; January 29-30, 2004, pages 21-22; January 27-29, 1972, pages 7-17; November 20-21, 1969, pages 15-16; May 3-4, 1968, pages 3-4; January 26-27, 1968, pages 4-7; Fed.R.Crim.P. 4.
SUPERSEDED: N.D.C.C. §§ 29-05-06, 29-05-07, 29-05-08, 29-05-09, 29-05-28, 29-05-29, 29-05-30, 33-12-06, 40-18-07, 40-18-08.
CONSIDERED: N.D.C.C. ch. 31-15, §§ 29-05-10, 29-05-23, 29-05-24, 29-05-25, 29-05-26, 29-05-27, 29-05-31, 40-11-11, 40-18-18.