(a) Issuance. The court must issue an arrest warrant for each defendant named in the indictment or information, if it is supported by a showing of probable cause as required in Rule 4(a). The court need not issue a warrant for any defendant who has been held to answer for any offense charged. After a showing of probable cause, the court may issue a summons instead of a warrant on its own motion or at the request of the prosecuting attorney. On like request or on its own motion, the court may issue more than one warrant or summons for the same defendant. The court must issue the arrest warrant or summons to the sheriff or other person authorized by law to execute or serve it. If a defendant fails to appear in response to a summons, the court must issue a warrant.
(1) Warrant. The warrant must conform to Rule 4(b)(1), describe the offense charged in the indictment or information, and command that the defendant be arrested and brought before the court. The court may fix the amount of bail and endorse it on the warrant.
(2) Summons. The summons must be in the same form as a warrant except that it must require the defendant to appear before the court at a stated time and place.
(c) Execution or Service; and Return.
(1) Execution or Service. The warrant must be executed or the summons served as provided in Rule 4(c)(1) and (2).
(2) Return. A warrant or summons must be returned in accordance with Rule 4(d).
(d) Warrant or Summons by Telephone or Other 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.
Rule 9 is an adaptation of Fed.R.Crim.P. 9, and provides for the issuance of a warrant or summons upon indictment or information. The Fourth Amendment provides that "no Warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing * * * persons * * * to be seized." If an indictment has been returned, the Fourth Amendment is satisfied and the warrant can issue on request without more, since the indictment is made on the oath of the grand jury. The provision for showing of the "probable cause" as required in Rule 4(a) makes explicit the fact that a warrant or summons can issue on the basis of an information only if the information or declaration filed with the information shows probable cause for the arrest warrant or summons. Generally, prosecution on information has as a prerequisite a determination of probable cause at a preliminary hearing. Exceptions are listed in N.D.C.C. § 29-09-02.
Subdivision (b) incorporates by reference the provisions of Rule 4(b) concerning the form of the warrant or summons. The minor additional requirements of this rule reflect the different stage in the proceeding at which the warrant or summons is being issued. The amount of bail may be fixed by the court and endorsed on the warrant. See Rule 46 (Release from Custody).
Paragraph (c)(1) incorporates by reference portions of Rule 4(c) dealing with the execution of a warrant and service of a summons.
Paragraph (c)(2), dealing with return, is virtually the same as Rule 4(d), providing for return of a warrant or summons issued on the complaint. At the request of the prosecuting attorney, any unexecuted warrant must be returned and canceled. On or before the return day, the person to whom a summons was delivered for service must make a return to the court.
Subdivision (d) 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.
Rule 9 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.
The explanatory note 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; May 12-13, 2016, page 29; April 26-27, 2012, pages 9-10; January 26-27, 2012,page 26; January 29-30, 2004, page 26; March 23-25, 1972, pages 16-20; May 15-16, 1969, page 7; May 3-4, 1968, page 7; Fed.R.Crim.P. 9.
SUPERSEDED: N.D.C.C. §§ 29-12-03, 29-12-04, 29-12-06, 29-12-08.
CONSIDERED: N.D.C.C. ch. 31-15.
CROSS REFERENCES: N.D.R.Crim.P. 4 (Arrest Warrant or Summons Upon Complaint); N.D.R.Crim.P. 4.1 (Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic Means); N.D.R.Crim.P. 46 (Release from Custody); N.D.C.C. § 29-09-02 (Prosecution on Information—In what cases).