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Effective Date: 3/1/2021

(a) In General. The magistrate may consider information communicated by telephone or other reliable electronic means when reviewing a complaint or deciding whether to issue a warrant or summons.

(b) Procedures. If the magistrate decides to proceed under this rule, the following procedures apply:

(1) Taking Testimony Under Oath. The magistrate must place under oath - and may examine - the applicant and any person on whose testimony the application is based.
(2) Creating a Record of the Testimony and Exhibits.
(A) Testimony Limited to Attestation. If the applicant does no more than attest to the contents of a written declaration submitted by reliable electronic means, the magistrate must acknowledge the attestation in writing on the declaration.
(B) Additional Testimony or Exhibits. If the magistrate considers additional testimony or exhibits, the magistrate must:
(i) ensure the testimony is recorded verbatim by an electronic recording device, by a court reporter or recorder, or in writing;
(ii) ensure any recording or notes are filed, transcribed on request, and any transcription is certified as accurate;
(iii) sign any other written record and ensure it is certified as accurate and filed; and
(iv) ensure the exhibits are filed.
(3) Preparing a Proposed Duplicate Original of a Complaint, Warrant, or Summons. The applicant must prepare a proposed duplicate original of a complaint, warrant, or summons, and must read or otherwise transmit its contents verbatim to the magistrate.
(4) Preparing an Original Complaint, Warrant, or Summons. If the applicant reads the contents of the proposed duplicate original, the magistrate must enter those contents into an original complaint, warrant, or summons. If the applicant transmits the contents by reliable electronic means, the transmission received by the magistrate may serve as the original.
(5) Modification. The magistrate may modify the complaint, warrant, or summons. The magistrate must then:
(A) transmit the modified version to the applicant by reliable electronic means; or
(B) file the modified original and direct the applicant to modify the proposed duplicate original accordingly.
(6) Issuance. To issue the warrant or summons, the magistrate must:
(A) sign the original documents;
(B) enter the date and time of issuance on the warrant or summons; and
(C) transmit the warrant or summons by reliable electronic means to the applicant or direct the applicant to sign the magistrate's name and enter the date and time on the duplicate original.

(c) Suppression Limited. Absent a finding of bad faith, evidence obtained from a warrant issued under this rule is not subject to suppression on the ground that issuing the warrant in this manner was unreasonable under the circumstances.

Rule 4.1 was adopted, effective March 1, 2013; amended, effective March 1, 2021.

Rule 4.1 is an adaptation of Fed.R.Crim.P. 4.1.

Rule 4.1 was amended, effective March 1, 2021, to delete the term “affidavit” and replace it with “declaration.” This amendment was made in response to N.D.C.C. ch. 31-15, which allows anyone to make an unsworn declaration that has the same effect as a sworn declaration, such as an affidavit. N.D.C.C. § 31-15-05 provides the required form for an unsworn declaration.

Sources: Joint Procedure Committee Minutes of April 24, 2020, pages 4-5; January 26-27, 2012, pages 22-25; Fed.R.Crim.P. 4.1.

Cross Reference: N.D.R.Crim.P. 3 (The Complaint); N.D.R.Crim.P. 4 (Arrest Warrant or Summons Upon Complaint); N.D.R.Crim.P. 9(Warrant or Summons Upon Indictment or Information); N.D.R.Crim.P. 41 (Search and Seizure).

Effective Date Obsolete Date
03/01/2021 View
03/01/2013 03/01/2021 View