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Rule 41 – Search and Seizure

May 13, 2021 | Criminal Procedure, Maine

(a) Scope. This Rule does not modify any special statutory provision regulating search, seizure, or the issuance and execution of search warrants.
(b) Authority to Issue a Search Warrant. A search warrant may be issued by the court or a justice of the peace as authorized by law.
(c) Grounds to Issue a Search Warrant. A warrant may be issued under this Rule to search for and seize any (1) property that constitutes evidence of the commission of a crime; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a crime; or (4) person for whose arrest there is probable cause, or who is unlawfully restrained.
(d) Definition of Property. The term “property” is used in this Rule and in Rules 41A and 41B to include, but not be limited to, the following:

(1) Documents, books, papers, and any other tangible objects;
(2) Electronically stored information;
(3) Information derived from a tracking device;
(4) Biological materials, including hair, blood, saliva, fingernail clippings or scrapings and materials obtainable by swab;
(5) Fingerprints, palmprints, and footprints; and
(6) Photographs, videos, or any other digital image of any person or object.
(e) Requesting a Search Warrant.

(1)In General. A search warrant request must be made in the presence of the court or justice of the peace unless the court or justice of the peace, upon request of the applicant, determines it reasonable under the circumstances to allow a search warrant request to be made outside the presence of the court or justice of the peace.
(2)Requesting a Search Warrant in the Presence of the Court or Justice of the Peace. A search warrant request made in the presence of the court or justice of the peace must be in the form of a written affidavit sworn to before the court or justice of the peace. The affidavit must specifically designate the person or place or other property to be searched or the tracking device to be installed and used, and the person or property to be searched for or tracked. Before ruling on the request the court or justice of the peace may hear evidence under oath or affirmation which shall be taken down by a court reporter or recording equipment or recorded in a manner that is capable of producing a record adequate for purposes of review.
(3)Requesting a Search Warrant Outside the Presence of the Court or Justice of the Peace. A search warrant request to be made outside the presence of the court or justice of the peace, if permitted by the court or justice of the peace, shall be as provided by Rule 41C.
(f) Issuing a Search Warrant.

(1)Duty of the Court or Justice of the Peace. If the court or justice of the peace to whom the search warrant request is made concludes that there is probable cause to believe that the grounds for the search exist, the court or justice of the peace shall issue a search warrant designating, except as otherwise provided in Rule 41B, the person, place, or other property to be searched, and the person or place or other property to be searched for.
(2)Contents of the Search Warrant.

(A)In General. The search warrant shall be directed to any officer authorized to enforce or assist in enforcing any law of the State of Maine. It shall state the names of the persons whose affidavits have been taken in support thereof. Except as otherwise provided in Rule 41B it shall command the officer to search the person or place named for the person or property specified. It shall designate the Unified Criminal Docket to which it shall be returned. A copy of the search warrant shall promptly be filed with the Unified Criminal Docket designated in the warrant by the applicant.

The warrant and affidavit materials shall be treated as impounded until the return is filed.

(B)Nighttime Search Warrant. The warrant shall direct that it be executed between the hours of 7 a.m. and 9 p.m., unless the court or justice of the peace, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at another time.
(C)Unannounced Execution of Search Warrant. The warrant may direct that it be executed by an officer without providing notice of the officer’s purpose and office if the court or justice of the peace so directs by appropriate provision in the warrant. The court or justice of the peace may so direct in the warrant upon a finding of reasonable cause showing that

(1) The property sought may be quickly or easily altered, destroyed, concealed, removed, or disposed of if prior notice is given;
(2) The escape of the person sought may be facilitated if prior notice is given;
(3) The person sought, the person from whom or from whose premises the property is sought, or an occupant thereof, may use deadly or nondeadly force in resistance to the execution of the warrant, and dispensing with prior notice is more likely to ensure the safety of officers, occupants, or others;
(4) Such facts and circumstances exist as would render reasonable the warrant’s execution without notice.
(g) Execution and Return with Inventory. The warrant may be executed and returned only within 14 days after its date. Upon the expiration of the 14 days, the warrant must be returned to the Unified Criminal Docket designated in the warrant. The officer taking property under the warrant shall 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. If the person is not present, the officer shall leave the copy of the warrant and the receipt at the premises. The return shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person from whose possession or premises the property was taken, if the person is present, or in the presence of at least one credible person other than the applicant for the warrant. It shall be verified by the officer. Upon request the justice or judge sitting in the Unified Criminal Docket designated in the warrant shall 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.
(h) Return of Papers to Clerk. The justice or judge sitting in the Unified Criminal Docket to which a search warrant is returned shall attach to the warrant a copy of the return, inventory, and all other papers in connection therewith and shall file them with the clerk of the Unified Criminal Docket for the district and division in which the property was seized.

The court, upon motion or upon the court’s own motion, may for good cause order the clerk to impound some or all of the warrant materials until a specified date or event.

(i) Attorney for State to File Notice. If a complaint, indictment, or information is filed subsequent to a search, the attorney for the State must file a notice with the clerk of the Unified Criminal Docket of the district in which the search took place stating the venue of the case. The clerk will transfer the search warrant to the court having jurisdiction and venue over the criminal action instituted by the complaint, indictment, or information.
(j) Motion for Return of Property. A person aggrieved by an unlawful seizure of property may file a motion in the Unified Criminal Docket for the return of the property on the ground that it was illegally seized. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the court shall order that the property be restored unless otherwise subject to lawful detention. The motion may be joined with a motion to suppress evidence.

Me. R. Uni. Crim. P. 41

Last amended effective November 2, 2016.