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Rule 41 – Search and Seizure

May 14, 2021 | Criminal Procedure, Vermont

(a) Authority to Issue Warrant. A search warrant authorized by this rule may be issued only by a judicial officer upon request of a law enforcement officer, an attorney for the state, or any other person authorized by law.
(b) Grounds for Issuance. A warrant may be issued under this rule to

(1) search for and seize any

(A) evidence of the commission of a criminal offense, or
(B) contraband, the fruits of crime, or things otherwise criminally possessed, or
(C) weapons or other things by which a crime has been committed or is about to be committed, or
(D) person who has been kidnapped or unlawfully imprisoned or restrained in violation of the laws of this state, or who has been kidnapped in another jurisdiction and is now concealed within this state, or any human fetus or human corpse, or
(2) search for a person whose arrest is authorized by law;
(3) monitor conversations for which one party has consented in order to obtain evidence of the commission of a crime.
(4) attach, use, or enter any premises to install a tracking device or use a tracking device to track the movement of a person or property to obtain evidence of the commission of a cnme.
(c) Denial of Warrant. If upon review of the application and affidavit, and consideration of any supplemental information provided under oath, the judicial officer denies the application for lack of probable cause, the judicial officer shall indicate on the proposed warrant that it is denied and sign the denial. The judicial officer shall immediately file the proposed warrant, application and affidavit with the clerk of the court designated in the warrant. If the denial occurs after court hours, the documents shall be delivered by the judicial officer to the clerk on the next business day.
(d) Issuance and Contents.

(1)Probable Cause. A judicial officer shall issue the warrant if the judicial officer is satisfied that there is probable cause to believe that grounds for the application exist based upon an affidavit or affidavits or sworn testimony or both. The finding of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished.
(2)Particularity. The warrant shall identify:

(A) the property or other object of the search and name or describe the person or place to be searched, or
(B) the conversations to be monitored, or
(C)

(i) the premises to be entered to install a tracking device, and
(ii) the person or property the movements of whom or which will be monitored by the tracking device and the location of the property where the tracking device will be installed, or,
(iii) if no device is to be installed, the tracking method to be used and the person or property to be tracked.
(3)Requesting a Warrant in the Presence of a Judicial Officer.

(A) Warrant on an Affidavit. When a law enforcement officer, an attorney for the state, or other person authorized by law presents an affidavit in support of a warrant, the judicial officer may require the affiant to appear personally and may examine under oath the affiant and any witness the affiant produces.
(B) Warrant on Sworn Testimony. The judicial officer may wholly or partially dispense with a written affidavit and base a warrant on sworn testimony if doing so is reasonable under the circumstances.
(C) Recording Testimony. Testimony taken in support of a warrant shall be recorded by a court reporter or by a suitable recording device, and the transcript or recording shall be filed with the clerk, along with any affidavit.
(4)Requesting a Warrant by Reliable Electronic Means.

(A) In General. When a law enforcement officer, an attorney for the state, or other person authorized by law so requests, a judicial officer may issue a warrant based on information communicated by reliable electronic means.
(B) Transmitting and Affirming Affidavits. Upon learning that an applicant is requesting a warrant under Rule 41(d)(4), a judicial officer shall inform the applicant that a signed or unsigned affidavit shall be transmitted electronically to the judicial officer. The warrant affidavit shall be sworn to or affirmed by administration of the oath over the telephone by the judicial officer. The administration of the oath need not be made part of the affidavit or recorded, but the judicial officer shall note on the affidavit that the oath was administered. The determination of probable cause for issuance of the warrant shall be made solely on the contents of the affidavit or affidavits provided.
(C) Warrant by Reliable Electronic Means. If the judicial officer proceeds under this subsection, the following additional procedures apply:

(i) Transmission to a Judicial Officer. The applicant shall prepare an original warrant and shall transmit it to the judicial officer by reliable electronic means.
(ii) Modification. The judicial officer may modify the original warrant. The judge shall transmit a copy of the modified warrant to the applicant by reliable electronic means.
(iii) Signing the Warrant. Upon determining to issue the warrant, the judicial officer shall immediately sign the original warrant with any modifications, enter on its face the exact date and time it is issued, and transmit a copy by reliable electronic means to the applicant.
(iv) Filing of the Warrant. The judicial officer shall file with the clerk by an appropriate means the signed original or modified warrant and the affidavit. The clerk shall enter the signed original or modified warrant on the docket when filed.
(5)Contents of the Warrant.

(A) In General. The warrant shall be directed to a law enforcement officer of the state of Vermont authorized to enforce or assist in enforcing any law thereof. The warrant shall command the officer to search the person or place named for the property or other object specified and seize the property or object and, if appropriate, the person specified. The warrant shall also command the officer to:

(i) serve the warrant within a specified period of time not to exceed 10 days from issuance;
(ii) serve the warrant between the hours of 6:00 A.M. and 10:00 P.M. unless the judicial officer for reasonable cause shown authorizes execution at other times; and
(iii) return the warrant to the court designated in the warrant.
(B) Warrant Seeking Electronically Stored Information. A warrant under Rule 41(d)(5)(A) 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 warrant may authorize the retention by the property owner of an electronic copy of such information necessary to avoid or mitigate business interruption or other disruptive consequences. The time for executing the warrant in Rule 41(d)(5)(A)(ii) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.
(C) Warrant for Monitoring a Conversation. The warrant shall be directed to a law enforcement officer of the state of Vermont authorized to enforce or assist in enforcing any law thereof. The warrant shall command the officer to monitor conversations for which one party has consented. The warrant shall identify the nonconsenting parties to the conversation, if known. The warrant may indicate that multiple conversations may be monitored and that it may be executed on multiple occasions. The warrant shall command the officer to:

(i) execute the warrant within a specified period of time not to exceed 10 days from issuance;
(ii) execute the warrant between the hours of 6:00 A.M. and 10:00 P.M. unless the judicial officer for reasonable cause shown authorizes execution at other times; and
(iii) return the warrant to the court designated in the warrant.
(D) Warrant for a Tracking Device. The warrant shall be directed to a law enforcement officer of the state of Vermont authorized to enforce or assist in enforcing any law thereof. The warrant shall identify the premises to be entered to install the tracking device, if any; the person or property the movements of whom or which will be monitored by the tracking device and the location of the property where the tracking device will be installed, or if no device is installed, the tracking method to be used and the person or property to be tracked; and shall specify a reasonable length of time that the device may be used. The time shall not exceed 15 days from the date the warrant was issued. The court may, for good cause and based on probable cause, grant one or more extensions for a reasonable period not to exceed 30 days each. The warrant shall command the officer to:

(i) complete any installation authorized by the warrant within a specified time no longer than 10 calendar days; and
(ii) perform any installation authorized by the warrant between the hours of 6:00 A.M. and 10:00 P.M. unless the judicial officer for reasonable cause shown authorizes installation at other times; and
(iii) return the warrant to the court designated in the warrant.
(6)Filing of the Warrant When Issued; Warrant Log and Database.

(A) Filing of the Warrant. Upon issuance of the warrant, the judge shall immediately file a copy of the signed warrant, as well as the original application and affidavit with the clerk of the court designated in the warrant. If the warrant is issued after court hours, the judge shall ensure that the documents are delivered to the court on the next business day for filing.
(B) Clerk’s Entry. Upon the filing of a warrant, application and any supporting affidavit(s), the clerk of court shall:

(i) assign a standardized warrant identification number to the warrant;
(ii) enter the warrant, its identifying details and subsequent activity into a warrant log and standardized database maintained for each unit; and
(iii) file the warrant documents in a secure location with all other warrant documents of the unit, pending lawful disclosure, court order, or other disposition.
(C) Warrant Log and Database. The warrant log and database shall be such as to permit monitoring of timely execution of warrants issued, and timely filing of return and inventory following search. The clerk shall affix the same warrant identification number to all subsequently filed documents related to the issuance, execution and return of the warrant. The Court Administrator shall prescribe policies and protocols for maintenance of the warrant log and database, including entries to be made therein, in each unit.
(e) Execution and Return of the Warrant.

(1)Execution. The officer taking property under the warrant shall:

(A) 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; or
(B) shall leave the copy and receipt at the place from which the property was taken.
(2)Inventory. A written inventory of any property taken shall be made in the presence of the applicant for the warrant, or the officer serving the warrant, and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant, officer serving the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. In a case involving the seizure of electronic storage media or the seizure and 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. A supplemental inventory shall be filed within five calendar days of the completion of the search of the contents of the media.
(3)Return. The return shall be made as promptly as possible, and in no event later than five calendar days after execution of the warrant and completion of the search, and shall be accompanied by the inventory and a copy of the warrant as served. Upon certification by a law enforcement officer, an attorney for the state or any other person authorized by law that good cause exists for extension of time for filing the return and inventory, the judicial officer may extend the time for making the return for such period of time as the judicial officer deems reasonable. If no property was seized in consequence of the authorized search, the return shall so indicate. The return and any accompanying documents may be filed by reliable electronic means. However, in such case, the original document prepared by the officers completing the return and accompanying documents must be filed with the court no later than 15 days following electronic submission. The clerk of the court to which the warrant was returned shall upon request 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.
(4)Execution and Return of a Warrant for Monitoring A Conversation.

(A) Noting the Time. A law enforcement officer executing a warrant for monitoring a conversation shall enter on the warrant the exact date and time that the warrant was executed and the period of time that any monitoring occurred.
(B) Return. If the warrant is executed a return shall be made within 90 days. The return and any accompanying documents may be filed by reliable electronic means. However, in such case, the original documents prepared by the officers completing the return and accompanying documents must be filed with the court no later than 15 days following electronic submission. Upon certification by a law enforcement officer, an attorney for the state, or any other person authorized by law that an investigation related to the warrant is ongoing, a judicial officer may authorize an extension of the time for making the return for such period as the judicial officer deems reasonable. The return shall identify:

(i) the identity of any nonconsenting parties to the conversation, if known;
(ii) the date and time of any monitored conversations; and
(iii) the approximate length of any monitored conversations.
(C) Service. At the time the return is made, the law enforcement officer executing a warrant for monitoring a conversation shall serve a copy of the warrant on any known nonconsenting parties to the conversation. Service may be accomplished by delivering a copy to the known nonconsenting parties; or by leaving a copy at the person’s residence or usual place of abode with an individual of suitable age and discretion who resides at that location; or by mailing a copy to the person’s last known address. Upon certification by a law enforcement officer, an attorney for the state, or any other person authorized by law that an investigation related to the warrant is ongoing, a judicial officer may authorize an extension of the time for serving the return for such period as the judicial officer deems reasonable. Service need not be made upon any person against whom criminal charges have been filed related to the execution of the warrant.
(5)Execution and Return of a Warrant for a Tracking Device.

(A) Noting the Time. The law enforcement officer executing a tracking-device warrant shall enter on it the exact date and time a device was installed or tracking was undertaken without installation of a device and the period during which a tracking device was used.
(B) Return. Within 10 calendar days after the use of a tracking device has ended, the law enforcement officer executing the warrant shall return it to the court designated in the warrant. The return shall describe the person or property tracked, and indicate the exact date and time for which the person or property’s movement was tracked. The return and any accompanying documents may be filed by reliable electronic means. However, in such case, the original documents prepared by the officers completing the return and accompanying documents must be filed with the court no later than 15 days following electronic submission.
(C) Service. At the time the return is made, the law enforcement officer executing a tracking-device warrant shall serve a copy of the warrant on the person who was tracked or whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked; or by leaving a copy at the person’s residence or usual place of abode with an individual of suitable age and discretion who resides at that location; or by mailing a copy to the person’s last known address. Upon certification by a law enforcement officer, an attorney for the state, or any other person authorized by law that an investigation related to the warrant is ongoing, a judicial officer may authorize an extension of the time for making the return for such period as the judicial officer deems reasonable. Service need not be made upon any person against whom criminal charges have been filed related to the execution of the warrant.
(6)Warrants not Executed; Filing Requirements. If a warrant is not executed within its prescribed term, the applicant shall within five days of the expiration of its term, file with the clerk of the court designated in the warrant, the original warrant as issued, the application, the affidavit, and a return signed and dated by the applicant with the notation “warrant not executed”. The return and any accompanying documents may be filed by reliable electronic means. However, in such case, the original documents prepared by the officers completing the return and accompanying documents must be filed with the court no later than 15 days following electronic submission.
(f) Motion for Return of Property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the court to which the warrant was returned or the court in the unit where property has been seized without warrant for the return of the property. The motion may be joined with a motion to suppress evidence. If the movant claims that the deprivation is in consequence of an unlawful search and seizure, the motion must be treated as a motion to suppress under Rule 12(b)(3). The court must receive evidence on any issue of fact necessary to the decision of the motion. If the court grants the motion, the property must be restored to the movant. The court may impose reasonable conditions to protect access to the property and its use in later proceedings.
(g) Motion to Suppress. A defendant aggrieved by an unlawful search and seizure may make a motion to suppress evidence in the county or territorial unit of trial as provided in Rule 12(b)(3). If the motion is granted, the evidence shall not be admissible at the trial or at any future hearing or trial.
(h) Incident Number. The warrant application shall contain any incident number assigned by the law enforcement agency or other applicant requesting the warrant. The return and inventory shall also contain reference to this incident number.
(i) Definitions. The following words wherever used in this rule shall have the following meanings:

(1) The term “property” is used in this rule to include documents, books, papers, and any other tangible objects except those listed in Rule 41.1(m)(3); and
(2) The term “reliable electronic means” shall include facsimile transmission, electronic mail, or other method of transmitting a duplicate of an original document; and
(3) The term “tracking device” means any device which permits the tracking of the movement of a person or object.

Vt. R. Crim. P. 41

Amended Dec. 19, 1973, eff. Jan. 1, 1974; March 17, 1977, eff. May 1, 1977; Dec. 8, 1981, eff. March 1, 1982; 1997, No. 44, ยง1; April 19, 2007, eff. April 19, 2007; Sept. 22, 2010, eff. Nov. 22, 2010; March 12, 2013, eff. May 13, 2013; Dec. 11, 2014, eff. Feb. 13, 2015; May 10, 2016, eff. August 15, 2016.

Reporter’s Notes-2016 Amendments

The amendments to Rule 41(e)(3), (4), (5), and (6) authorize the filing of search warrant returns and accompanying documents by reliable electronic means to facilitate prompt filing where great distances, or particular circumstances of completion of the return, would otherwise impede timely submission of search warrant returns as contemplated by Rule 41, consistent with the warrant “accountability” procedures adopted in 2013. Subdivision 41(d)(4) already provides for the electronic application for and issuance of search warrants, and at this juncture there is general understanding of and experience with the process of issuing search warrants by reliable electronic means. The present amendment adds the filing of returns to this established process of transmission of warrant documents by reliable electronic means. The amendment adds the requirement that, in event of electronic submission, the original return and accompanying documents that were prepared by the executing officers must be subsequently filed with the court no later than 15 days following electronic submission to avert any dispute as to which are the original, and operative, return, inventory, and other accompanying documents.