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Rule 41B – Special Provisions for Searches and Seizures of Certain Kinds of Property

May 13, 2021 | Criminal Procedure, Maine

(a) Electronically Stored Information.

(1)Contents of Warrant. A warrant seeking electronically stored information 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.
(2)Execution of Warrant. The time for executing the warrant in Rule 41(g) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.
(3)Inventory. The inventory may be limited to describing the physical storage media that were seized or copied.
(b) Information Derived From a Tracking Device.

(1)Definition of Tracking Device. The term “tracking device” is used in this Rule and in Rule 41 to mean an electronic or mechanical device which permits the tracking of the movement of a person or object.
(2)Contents of Warrant. A warrant for a tracking device must identify the person or property to be tracked and the Unified Criminal Docket to which it must be returned. It must command the officer to complete any installation authorized by the warrant within a specified time and specify a reasonable length of time that the device may be used.
(3)Execution and Return of Warrant. Notwithstanding Rule 41(g), within 14 calendar days after the use of the tracking device has ended, the officer executing the warrant must return it to the Unified Criminal Docket designated in the warrant. The time for executing the warrant in this paragraph refers to the use of the tracking device and not to any later data extraction and review. The officer must enter on the warrant the date and time the device was installed and the period during which it was used.
(4)Service of Warrant. Within 14 calendar days after the use of the tracking device has ended, the officer executing it must serve a copy of the warrant on the person who was tracked or whose property was tracked. Service may be accomplished by (A) delivering a copy to the person who, or whose property, was tracked; (B) 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 (C) mailing a copy to the person’s last known address. The time may be extended by the court for good cause shown.
(c) Cell Phone or Other Electronic Device Location Information.

The following outlines the special statutory provisions both for obtaining the location information of a cell phone or other electronic device and for its in-court use at a trial, hearing, or proceeding as provided under 16 M.R.S. §§647 to 650-B. Additionally, it specifies how Rule 41 is to be applied; identifies the “appropriate court” in which the written statement must be filed to comply with 16 M.R.S. §650(4); and makes all written statements confidential unless a court orders otherwise with respect to a specific written statement.

(1)Definitions. The definitions for “electronic communication service,” “electronic device,” “location information,” and other included statutorily defined terms are as provided under 16 M.R.S. §647.
(2)Search Warrant Requirement; Application Process; Time Allowed for Execution. Unless an exception is provided by 16 M.R.S. §650, a search warrant is required to obtain location information by 16 M.R.S. §648. The application process for the issuance of the search warrant and its return are as provided in Rule 41. The time allowed for its execution, however, is provided by 16 M.R.S. §648, not Rule 41(g).
(3)Notice Obligation to Identifiable Owner or User; Timing and Content of Written Notice. Unless waived as provided under 16 M.R.S. §649(2), written notice to an identifiable owner or user is as provided under 16 M.R.S. §649. Timing and content of the written notice is as provided under 16 M.R.S. §649(1).
(4)Court Order Prohibiting an Electronic Communication Service or Location Information Service from Disclosing Existence of Search Warrant. A court order to a provider of electronic communication service or location information service not to notify any other person of the existence of the search warrant is as provided under 16 M.R.S. §649(3).
(5)Exceptions to Warrant Requirement. Exceptions to the requirement of obtaining a search warrant in order to obtain location information is as provided under 16 M.R.S. §650. In the event no warrant is obtained due to reliance upon the immediate danger of death or serious physical injury exception pursuant to 16 M.R.S. §650(4), the required written statement must be filed with the Kennebec County Consolidated Clerk’s Office. Unless a court orders otherwise with respect to a specific written statement, all written statements are confidential.
(6)Conditions for In-Court Use of Location Information or Evidence Derived From It. Unless waived by a court under 16 M.R.S. §650-A(2), use at a trial, hearing, or proceeding of location information or evidence derived from it is conditioned upon notice and the furnishing of certain warrant materials as provided by 16 M.R.S. §650-A(1).
(d) Cell Phone or Other Portable Electronic Device Content Information.

The following outlines the special statutory provisions both for obtaining the content information of a cell phone or other portable electronic device and the consequences for violating its provisions as provided under 16 M.R.S. §§641 – 646.

(1)Definitions. The definitions for “content information,” “electronic communication service,” “portable electronic device,” and other included statutorily defined terms are as provided under 16 M.R.S. §641.
(2)Search Warrant Requirement. Unless an exception is provided under 16 M.R.S. §644, a search warrant is required to obtain content information from a provider of electronic communication service by 16 M.R.S. §642. The application process for the issuance of the search warrant, its execution and return are as provided in Rule 41.
(3)Notice Obligation to Owner or User; Timing and Content of Written Notice. Unless waived under 16 M.R.S. §643(2), written notice to an owner or user is as provided by 16 M.R.S. §643. Timing and content of the written notice is as provided by 16 M.R.S. §643(1).
(4)Court Order Prohibiting Electronic Communication Service from Disclosing Existence of Search Warrant. A court order to a provider of electronic communication services not to notify any other person of the existence of the search warrant is as provided under 16 M.R.S. §643(3).
(5)Exceptions to Warrant Requirement. Exceptions to the requirement of obtaining a search warrant in order to obtain content information are as provided under 16 M.R.S. §644.
(6)Content Information Obtained in Violation of 16 M.R.S. §§641 – 644 Inadmissible. Content information obtained in violation of 16 M.R.S. §§641 – 644 is inadmissible in a criminal proceeding as provided under 16 M.R.S. §645.

Me. R. Uni. Crim. P. 41B

Last amended effective November 2, 2016.