RULE 41. SEARCH AND SEIZURE
Effective Date: 1/1/1995
Obsolete Date: 3/1/2006
(a) Authority to Issue Warrant. A search warrant authorized by this Rule may be issued by a State or Federal magistrate acting within or for the territorial jurisdiction wherein the property or person sought is located or from which it has been removed.
(b) Property or Persons Which May Be Seized With a Warrant. A warrant may be issued under this Rule to search for and seize any (i) property that constitutes evidence of the commission of a criminal offense; or (ii) contraband, the fruits of crime, or things otherwise criminally possessed; or (iii) property designed or intended for use or which is or has been used as the means of committing a criminal offense; or (iv) person for whose arrest there is probable cause, or who is unlawfully restrained.
(c) Issuance and Contents.
(1) Warrant Upon Affidavit or Sworn Recorded Testimony. A warrant other than a warrant upon oral testimony under subdivision (c)(2) may issue only on an affidavit or affidavits sworn to or sworn recorded testimony taken before a State or Federal magistrate and establishing the grounds for issuing the warrant. If the State or Federal magistrate is satisfied that grounds for the application exist or that there is probable cause to believe they exist, the magistrate shall issue a warrant identifying the property or person to be seized and naming or describing with particularity the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant, the magistrate may require the affiant or other witnesses to appear personally and may examine under oath the affiant and any witnesses the affiant may produce, but proceedings must be recorded by a court reporter or recording equipment and made part of the proceedings. The warrant must be directed to a peace officer authorized to enforce or assist in enforcing any law of this State. It must command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property or person specified. The warrant may be served in the daytime, unless the issuing authority, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at times other than daytime. It may designate a State or Federal magistrate to whom it must be returned.
(2) Warrant Upon Remote Communication.(i) General Rule. If the circumstances make it reasonable to dispense with the requisites of paragraph (1) for the issuance of a warrant a State or Federal magistrate may issue a warrant based upon sworn oral testimony communicated by telephone or other appropriate means.(ii) Application. The person who is requesting the warrant shall prepare a document to be known as a duplicate original warrant and shall read the duplicate original warrant, verbatim, to the magistrate. The magistrate shall enter, verbatim, what is so read to the magistrate on a document to be known as the original warrant. The magistrate may direct that the warrant be modified.(iii) Issuance. If the magistrate is satisfied that the circumstances are such as to make it reasonable to dispense with the requisites of paragraph (1) for the issuance of a warrant and that grounds for the application exist or that there is probable cause to believe that they exist, the magistrate shall order the issuance of a warrant by directing the person requesting the warrant to sign the magistrate's name on the duplicate original warrant. The magistrate shall immediately sign the original warrant and enter on the face of the original warrant the date and time when the warrant was ordered to be issued. The finding of probable cause for a warrant upon oral testimony may be based on the same kind of evidence as is sufficient for a warrant upon affidavit.(iv) Recording and Certification of Testimony. If a caller informs the magistrate that the purpose of the call is to request a warrant, the magistrate shall immediately place under oath each person whose testimony forms the basis of the application and each person applying for that warrant. If a voice recording device is available, the magistrate shall record by means of the device all of the call after the caller informs the magistrate that the purpose of the call is to request a warrant. Otherwise a stenographic or longhand verbatim record must be made. If a voice recording device is used or a stenographic record made, the magistrate shall have the record transcribed, shall certify the accuracy of the transcription, and shall file a copy of the original record and the transcription with the court. If a longhand verbatim record is made, the magistrate shall file a signed copy with the court.(v) Contents. The contents of a warrant upon oral testimony are the same as the contents of a warrant upon affidavit.(vi) Additional Rules for Execution. The person who executes the warrant shall enter the exact time of execution on the face of the duplicate original warrant.(vii) Motion to Suppress Precluded. Absent a finding of bad faith, evidence obtained pursuant to a warrant issued under this subdivision is not subject to a motion to suppress on the ground that the circumstances were not such as to make it reasonable to dispense with the requisites of paragraph (1) for the issuance of a warrant.
(3) Warrant By Facsimile Transmission.(i) General Rule. An affidavit in support of the issuance of a warrant may be submitted by facsimile transmission. A warrant may be transmitted by facsimile transmission.(ii) Application. The magistrate shall orally administer the oath or affirmation to the affiant over the telephone. The affiant shall sign the affidavit and submit the affidavit to the magistrate by facsimile transmission. An affidavit sworn to a magistrate over the telephone under this paragraph is sworn to before a magistrate for the purposes of subdivision (c).(iii) Issuance. The magistrate shall note on the warrant the date and time of issuance of the warrant, and indicate on the warrant that the warrant was sworn to over the telephone. The facsimile duplicate of the original has the same effect as the original.(iv) Execution. The person who executes the warrant shall enter the date and time of execution on the face of the facsimile warrant.
(d) Execution and Return With Inventory. 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, if that person is present, or, if not present, shall leave the copy and receipt at the place from which the property was taken. The return must be made promptly and must be accompanied by a written inventory of any property taken. The inventory must 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, if not present, in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and must be verified by the officer.The magistrate upon request shall 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. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the trial court for the return of property on the ground of being entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property must be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing in the trial court after an indictment, information, or complaint is filed, it must be treated also as a motion to suppress under Rule 12.
(f) Motion to Suppress. A motion to suppress evidence may be made in the trial court as provided in Rule 12.
(g) Return of Papers to Clerk. The magistrate before whom the warrant is returned 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 trial court.
(h) Scope and Definition. This Rule does not modify any act, inconsistent with it, regulating search, seizure and the issuance and execution of search warrants in circumstances for which special provision is made. The term "property" is used in this Rule to include documents, books, papers, and any other tangible objects. The term "daytime" is used in this Rule to mean the hours from 6:00 a.m. to 10:00 p.m., according to local time.
Rule 41 was amended, effective September 1, 1983; March 1, 1990; March 1, 1992 January 1, 1995; March 1, 2006; March 1, 2011; March 1, 2012; March 1, 2013; December 15, 2016; September 15, 2019.
Rule 41 is an adaptation of Fed.R.Crim.P. 41 and is designed to implement the provisions of Article I, Section 8, of the North Dakota Constitution and the Fourth Amendment to the United States Constitution, which guarantee, "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized." To implement this constitutional protection, an illegal search and seizure will bar the use of such evidence in a criminal prosecution. The suppression sanction is imposed in order to discourage abuses of power by law enforcement officials in conducting searches and seizures.
Subdivision (a) provides that a search warrant be issued by a magistrate, either state or federal, acting within or for the territorial jurisdiction. The provision which permits a federal magistrate to issue a search warrant is the reciprocal of the federal rule, which permits a state magistrate to issue a search warrant pursuant to a federal matter. It is contemplated that a search warrant will be issued by a federal magistrate only on the nonavailability of a state magistrate.
Subdivision (a) does not require that the individual requesting the search warrant be a law enforcement officer. There appears to be common-law support for the use of the search warrant as a means of getting an owner's property back. The primary purpose of the rule, however, is the authorization of a search in the interest of law enforcement and as a practical matter the request for issuance of a search warrant by someone other than a law enforcement officer is virtually nonexistent.
Subdivision (a) was amended, effective December 15, 2016, to add language defining a search warrant.
Subdivision (b) describes the property, evidence or persons which may be seized with a lawfully issued search warrant. Issuance of a search warrant to search for items of solely evidential value is authorized. There is no intention to limit the protection of the Fifth Amendment against compulsory self-incrimination, so items that are solely "testimonial" or "communicative" in nature might well be inadmissible on those grounds.
Paragraph (c)(1) follows the federal rule except that North Dakota's rule permits the issuance of a warrant on sworn recorded testimony without an affidavit. Probable cause for the issuance of a search warrant should be assessed under the totality-of-circumstances test.
Paragraph (c)(1) was amended, effective December 15, 2016, to allow grounds for issuance of a search warrant to be established in a written declaration by a licensed peace officer made and subscribed under penalty of perjury. This amendment facilitates submission of electronic documents to establish the grounds for search warrants. Any electronic signature on a document submitted under this rule by a licensed peace officer is considered to be that of the officer.
Paragraph (c)(1) 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.
The provision for examination of the affiant before the magistrate is intended to assure the magistrate an opportunity to make a careful decision as to whether there is probable cause based on legally obtained evidence. The requirement that the testimony be recorded is to insure an adequate basis for determining the sufficiency of the evidentiary grounds for the issuance of the search warrant if a motion to suppress is later filed.
The language of subparagraph (c)(1)(E), "for reasonable cause shown," is intended to explain the necessity for executing the warrant at a time other than the daytime. This provision is intended to be a substantive prerequisite to the issuance of a warrant that is to be executed at a time other than daytime, although it is not necessary that the quoted language ("for reasonable cause shown") be defined in subdivision (h).
Former paragraphs (c)(2) and (c)(3) were deleted and a new paragraph (c)(2) was added, effective March 1, 2013, to allow the magistrate to issue a warrant based on information communicated by telephone or other reliable electronic means under the procedure set out in Rule 4.1.
Paragraph (c)(3) was added and paragraph (d)(1) was amended, effective March 1, 2012, to provide guidelines for warrants authorizing the seizure of electronic storage media and electronically stored information and for the inventory of seized electronic material. The amendments were based on the December 1, 2009, amendments to Fed.R.Crim.P. 41.
Subdivision (d) is intended to make clear that a copy of the warrant and an inventory receipt for property or evidence taken shall be left at the premises at the time of the lawful search or with the person from whose premises the property is taken if he is present.
Paragraph (d)(3) was amended, effective December 15, 2016, to require the officer taking property or evidence under a warrant to preserve it until the court directs its disposition.
Paragraph (d)(4) was amended, effective March 1, 2013, to allow an officer to make a return by reliable electronic means.
Subdivision (e) requires that the motion for return of property or evidence be made in the trial court rather than in a preliminary hearing before the magistrate who issued the warrant. It further provides for a return of the property or evidence if: (1) the person is entitled to lawful possession, and (2) the seizure is illegal. However, property or evidence which is considered contraband does not have to be returned even if seized illegally. The last sentence of subdivision (e) provides that a motion for return of property or evidence, made in the trial court, shall be treated as a motion to suppress under N.D.R.Crim.P. 12. The purpose of this provision is to have a series of pretrial motions disposed of in a single appearance, such as at a Rule 17.1 (Omnibus Hearing), rather than in a series of pretrial motions made on different dates causing undue delay in administration.
Subdivisions (a), (b), and (c) were amended in 1983, effective September 1, 1983, to add persons as permissible objects of search warrants. These amendments follow 1979 amendments to Fed.R.Crim.P. 41 and are intended to make it possible for a search warrant to issue to search for a person if there is probable cause to arrest that person; or that person is being unlawfully restrained.
Subdivisions (c) and (d) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Subdivision (e) was amended, effective March 1, 1992, to track the federal rule.
Rule 41 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 29-30, 2016, pages 2-5; January 26-27, 2012, pages 26-27; April 28-29, 2011, page 17; September 23-24, 2010, page 32; April 29-30, 2010, page 20, 25-26; April 28-29, 2005, pages 5-8; January 27-27, 2005, pages 33-34; April 28-29, 1994, pages 22-23; November 7-8, 1991, page 4; October 25-26, 1990, pages 15-16; April 20, 1989, page 4;December 3, 1987, page 15; October 15-16, 1981, pages 12-15; December 7-8, 1978, pages 23-26; October 12-13, 1978, pages 15-19; April 24-26, 1973, page 14; December 11-15, 1972, pages 31-37; November 18-20, 1971, pages 3-9; September 16-18, 1971, pages 11-32; March 12-13, 1970, page 3; November 20-21, 1969, pages 19-24; May 15-16, 1969, pages 21-23; Fed.R.Crim.P. 41.
STATUTES AFFECTED:
SUPERSEDED: N.D.C.C. §§ 29-29-01, 29-29-02, 29-29-03, 29-29-04, 29-29-05, 29-29-06, 29-29-07, 29-29-10, 29-29-11, 29-29-12, 29-29-13, 29-29-14, 29-29-15, 29-29-16, 29-29-17.
CONSIDERED: N.D.C.C. ch. 31-15, §§ 12-01-04(12), 12-01-04(13), 29-01-14(3), 29-29-08, 29-29-09, 29-29-18, 29-29-19, 29-29-20, 29-29-21, 31-04-02. N.D.C.C. ch. 28-29.1. N.D.C.C. ch.19-03.1.
CROSS REFERENCE: N.D.R.Crim.P. 4.1 (Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic Means); N.D.R.Crim.P. 12 (Pleadings and Pretrial Motions); N.D.R.Crim.P. 17.1 (Omnibus Hearing and Pretrial Conference); N.D.R.Ct. 2.2(Facsimile Transmission); N.D. Sup. Ct. Admin. R. 52 (Interactive Television).