RULE 9. WARRANT OR SUMMONS UPON INDICTMENT OR ...

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Obsolete Date: 3/1/2006

(a) Issuance.Upon the request of the prosecuting attorney the court shall issue a warrant of arrest for each defendant named in the information, if it is supported by a showing of probable cause as required inRule 4(a), or in the indictment, except that a warrant need not be issued for any defendant who has been held to answer for any offense charged. The court, after a showing of probable cause, shall issue a summons instead of a warrant upon its own motion or at the request of the prosecuting attorney. Upon like request or on its own motion, the court shall issue more than one warrant or summons for the same defendant. The warrant or summons shall be delivered to the sheriff or other person authorized by law to execute or serve it. If the defendant fails to appear in response to a summons, a warrant shall issue.

(b) Form.

(1) Warrant. The form of the warrant shall be as provided in Rule 4(b)(1) except that it shall be signed by the clerk, describe the offense charged in the indictment or information, and command that the defendant be arrested and brought before the court. The amount of bail may be fixed by the court and endorsed on the warrant.

(2) Summons. The summons shall be in the same form as the warrant except that it shall summon 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 shall be executed or the summons served as provided inRule 4(c)(1) and (2).

(2) Return. The officer executing a warrant shall make return thereof to the court.At the request of the prosecuting attorney any unexecuted warrant shall be returned and canceled.On or before the return day the person to whom a summons is delivered for service shall make return thereof. At the request of the prosecuting attorney made while the indictment or information is pending, a warrant returned unexecuted and not canceled, or a summons returned unserved, or a copy thereof, may be delivered by the clerk to a peace officer for execution or service.

Explanatory Note

Rule 9 was amended, effective March 1, 2006; March 1, 2013. The explanatory note was amended effective March 1, 2017; March 1, 2021.

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.

STATUTES AFFECTED:

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).

Version History

Effective Date	Obsolete Date
03/01/2021	View
03/01/2017	03/01/2021	View
03/01/2013	03/01/2017	View
03/01/2006	03/01/2013	View
03/23/1972	03/01/2006	View