A.Â
Definition; process.
(1)Â
A search warrant is a written order, signed by a Tribal Court Judge,
directing a law enforcement officer to conduct a search and seize
property specified in the warrant. A search warrant shall describe
the person, property or place to be searched and shall describe the
property to be seized.
(2)Â
An affidavit for a search warrant may be made by any electronic or
electromagnetic means of communication, including by facsimile or
over a computer network, if both of the following occur:
(a)Â
The Tribal Court Judge orally administers the oath or affirmation
to an applicant for a search warrant who submits an affidavit under
this section; and
(b)Â
The affiant signs the affidavit. Proof that the affiant has
signed the affidavit may consist of an electronically or electromagnetically
transmitted facsimile of the signed affidavit or an electronic signature
on an affidavit transmitted over a computer network.
(3)Â
A Tribal Court Judge may issue a written search warrant in person
or by any electronic or electromagnetic means of communication, including
by facsimile or over a computer network.
(4)Â
The officer or department receiving an electronically or electromagnetically
issued search warrant shall receive proof that the issuing Tribal
Court Judge has signed the warrant before the warrant is executed.
Proof that the issuing Tribal Court Judge has signed the warrant may
consist of an electronically or electromagnetically transmitted facsimile
of the signed warrant or an electronic signature on a warrant transmitted
over a computer network.
(5)Â
If an oath or affirmation is orally administered by electronic or
electromagnetic means of communication under this section, the oath
or affirmation is considered to be administered before the Tribal
Court Judge.
(6)Â
If an affidavit for a search warrant is submitted by electronic or
electromagnetic means of communication, or a search warrant is issued
by electronic or electromagnetic means of communication, the transmitted
copies of the affidavit or search warrant are duplicate originals
of the affidavit or search warrant and are not required to contain
an impression made by an impression seal.
B.Â
A search warrant shall be issued only by a Tribal Court Judge and
only upon probable cause that a search will discover: (1) stolen,
embezzled, contraband or otherwise unlawfully possessed property;
(2) property which has been or is being used to commit a criminal
offense; or (3) property which constitutes evidence of the commission
of a criminal offense. Such probable cause shall be supported by a
sworn written statement or sworn oral testimony.
Warrants shall be served only by authorized law enforcement
officers. The executing officer shall return the warrant to the Tribal
Court within the time limit shown on the face of the warrant, which
in no case shall be longer than ten (10) days from the date of issuance.
Warrants not returned within such time limits shall be void.
No law enforcement officer shall conduct any search without
a valid warrant except:
A.Â
When he is making a lawful arrest; or
B.Â
With the voluntary consent of the person being searched or the person
entitled to possession of property being searched; or
C.Â
When the search is of a moving vehicle and the officer has probable
cause to believe that it contains contraband, stolen property, or
property otherwise unlawfully possessed; or
D.Â
When the search is of a person and the officer has probable cause
to believe the person to be searched is armed and dangerous; or
E.Â
When the search involves evidence which is objectively incriminating
in character and is in plain view of a law enforcement officer from
a location where the officer has a legal right to be at that specific
time; or
F.Â
When the search involves entry into a residence, or other location
normally not open to the public, when one or more of the following
circumstances are present:
(1)Â
The officer enters the premises while continuing the hot pursuit
of a suspect the officer has reason to believe committed a felony
or who has escaped from the custody of law enforcement officers; and/or
(2)Â
The officer enters the premises based upon a reasonable belief that
entry is necessary to rescue a person in imminent threat of death
or serious injury.
A.Â
The officer serving and executing a warrant shall make an inventory
of all property seized, and a copy of this inventory shall be left
with every person from whom property is seized.
B.Â
A hearing shall be held by the Tribal Court to determine the disposition
of all property seized by the police. Upon satisfactory proof of ownership,
the property shall be delivered immediately to the owner, unless the
property is contraband or is to be used as evidence in a pending case.
Property seized as evidence shall be returned to the owner after final
judgment. Property confiscated as contraband shall be destroyed or
otherwise lawfully disposed of, as ordered by the Tribal Court.
The Tribal Court may prohibit the introduction or use at trial
of any evidence seized in a search conducted in violation of § 8.8.-9.
[Added 3-17-2016 by Res.
No. 03-17-16-05]
A.Â
Warrant. On motion of the prosecuting attorney or the defendant,
the Court may issue a warrant, subject to reasonable bail, for the
arrest of a material witness. The warrant shall issue only on a showing,
by affidavit or on the record in open Court, that the testimony of
the witness is material and that:
(1)Â
The witness has refused to submit to a deposition ordered by
the Court; or
(2)Â
The witness has refused to obey a lawfully issued subpoena;
or
(3)Â
It may become impracticable to secure the presence of the witness
by subpoena. Unless otherwise ordered by the Court, the warrant shall
be executed and returned in the same manner as an arrest warrant.
B.Â
Hearing. After the arrest of the witness, the Court shall hold a
hearing no later than the next calendar day in which the Court is
open. The witness shall be entitled to be represented by counsel at
his or her own expense or as appointed at the discretion of the Court.
C.Â
Release/detention. Upon a determination that the testimony of the witness is material and that one of the conditions set forth in § 8.8-11.1A exists, the Court shall set conditions for release of the witness. Release of a material witness may be delayed for a reasonable time until the testimony or deposition of the witness can be taken.