RULE 41. SEARCH AND SEIZURE
Effective Date: 12/15/2016
Obsolete Date: 9/15/2019
(a) In General
(1) Definition. A search warrant is an order in writing, made in the name of the state, signed by the magistrate, directed to a peace officer, commanding the peace officer to search for property, evidence or a person.
(2) Authority to Issue a Warrant. A state or federal magistrate acting within or for the territorial jurisdiction where the property, evidence or person sought is located, or from which it has been removed, may issue a search warrant authorized by this rule.
(b) Property, Evidence or Persons Subject to Search and Seizure.A warrant may be issued for any of the following:
(1) property that constitutes evidence of a crime;
(2) contraband, the fruits of crime, or things criminally possessed;
(3) property designed or intended for use, or which is or has been used as the means of, committing a crime;
(4) a person for whose arrest there is probable cause, or who is unlawfully restrained.
(c) Issuing the Warrant.
(1) Warrant on Affidavit or Sworn Recorded Testimony.(A) In General. A warrant other than a warrant on oral testimony under Rule 41 (c)(2) may issue only when the grounds for issuing the warrant are established in:(i) a written declaration by a licensed peace officer made and subscribed under penalty of perjury, or(ii) an affidavit or affidavits sworn to or sworn recorded testimony taken before a state or federal magistrate.(B) Examination. Before ruling on a request for a warrant, the magistrate may require the licensed peace officer, affiant or other witnesses to appear personally and may examine under oath the licensed peace officer, affiant and any witnesses the affiant may produce. This examination must be recorded and made part of the proceedings.(C) Probable Cause. 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 must issue a warrant identifying the property, evidence 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.(D) Command to Search. 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 ten days, the person or place named for the property, evidence or person specified.(E) Service and Return. The warrant must 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 by Telephonic or Other Reliable Electronic Means. In accordance with Rule 4.1, the magistrate may issue a warrant based on information communicated by telephone or other reliable electronic means.
(3) Warrant Seeking Electronically Stored Information. A warrant under Rule 41(c) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.
(d) Execution and Return With Inventory.
(1) Execution. The person who executes the warrant must enter the date and time of the execution on the face of the warrant.
(2) Inventory. An officer present during the execution of the warrant must prepare and verify an inventory of any property or evidence seized. The officer must do so in the presence of the applicant for the warrant and the person from whom, or from whose premises, the property or evidence was taken. If either one is not present, the officer must prepare and verify the inventory in the presence of at least one other credible person. In a case involving the seizure of electronic storage media or the seizure or copying of electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied. The officer may retain a copy of the electronically stored information that was seized or copied.
(3) Receipt. The officer taking property or evidence under the warrant must:(A) give a copy of the warrant and a receipt for the property or evidence taken to the person from whom or from whose premises the property or evidence was taken; or(B) leave a copy of the warrant and receipt at the place from which the officer took the property or evidence;(C) preserve the property or evidence taken until the court directs its proper disposition.(4) Return. The officer executing the warrant must promptly return it—together with a copy of the inventory—to the magistrate designated on the warrant. The officer may do so by reliable electronic means. The magistrate on request must give a copy of the inventory to the person from whom, or from whose premises, the property or evidence was taken and to the applicant for the warrant.
(e) Motion for Return of Property or Evidence. A person aggrieved by an unlawful search and seizure of property or evidenceor by the deprivation of property may move the trial court for the return of the property or evidence. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property or evidence to the moving party, although the court may impose reasonable conditions to protect access and use of the property or evidence in later proceedings. If a motion for return of property or evidence is made or heard 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 to whom the warrant is returned must attach to the warrant a copy of the return, inventory and all other related papers and must file them with the clerk of the trial court.
(h) Scope and Definitions.
(1) Scope. This rule does not modify any statute regulating search or seizure, or the issuance and execution of a search warrant in special circumstances.
(2) Definitions. The following definitions apply under this rule:(A) "Property" includes documents, books, papers and any other tangible objects.(B) "Daytime" means 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).