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23A-35 (RULE 41) SEARCH AND SEIZURE
CHAPTER 23A-35

(RULE 41) SEARCH AND SEIZURE

23A-35-1      Definition of search warrant.
23A-35-2      (Rule 41(a)) Magistrate issuing warrant--Officer requesting.
23A-35-3      (Rule 41(b)) Property for which warrant may be issued.
23A-35-4      (Rule 41(c)(1)) Affidavits furnishing probable cause for warrant--Examination of witnesses by magistrate--Record of proceedings--Contents of warrant.
23A-35-4.1      Filing of affidavit--Sealing of affidavit.
23A-35-4.2      Electronic transmission of affidavit in support of search warrant--Issue of search warrant--Proof of magistrate's signature.
23A-35-4.3      Search warrant for installation, use, and maintenance of tracking device.
23A-35-5      (Rule 41(c)(2)) Oral testimony as basis for warrant--Transcription, certification and filing with court.
23A-35-6      (Rule 41(c)(2)(A)) Grounds for warrant on oral testimony--Verbatim contents of warrant--Signature of duplicate by requesting officer--Preparation of original by magistrate.
23A-35-7      (Rule 41(c)(2)(B)) Return of warrant issued on oral testimony--Signature by person establishing grounds for issuance.
23A-35-8      Breaking in to execute warrant after refusal of admittance--Liberation of person executing warrant.
23A-35-9      Grounds for no-knock warrant--Powers of officer executing.
23A-35-10      (Rule 41(d)) Receipt and copy of warrant given to person from whom property taken--Inventory filed with return of warrant--Copies of inventory.
23A-35-11      (Rule 41(e)) Motion in circuit court for return of property illegally seized--Restoration of property--Treatment as motion to suppress evidence.
23A-35-12      (Rule 41(f)) Motion to suppress evidence in trial court.
23A-35-13      (Rule 41(g)) Papers filed with clerk of court by magistrate to whom warrant returned.
23A-35-14      (Rule 41(h)) Special provisions for search unimpaired--Property defined.


23A-35-1Definition of search warrant.

A search warrant is a written order, issued in the name of the state, signed by a committing magistrate, directed to a law enforcement officer, commanding him to search for designated personal property and to bring it to the magistrate.

Source: SDC 1939 & Supp 1960, § 34.1101; SDCL, § 23-15-1; SL 1978, ch 178, § 438.


23A-35-2(Rule 41(a)) Magistrate issuing warrant--Officer requesting.

A search warrant authorized by this chapter may be issued by a committing magistrate in the county where the property sought is located, on the request of a law enforcement officer or prosecuting attorney.

Source: SL 1978, ch 178, § 439.


23A-35-3(Rule 41(b)) Property for which warrant may be issued.

A warrant may be issued under this chapter to search for and seize any:

(1)    Property that constitutes evidence of the commission of a criminal offense;

(2)    Contraband, the fruits of crime, or things otherwise criminally possessed; or

(3)    Property designed or intended for use in, or which is or has been used as the means of, committing a criminal offense.

Source: SDC 1939 & Supp 1960, § 34.1103 (1) to (3); SDCL, §§ 23-15-3 to 23-15-5; SL 1978, ch 178, § 440.


23A-35-4(Rule 41(c)(1)) Affidavits furnishing probable cause for warrant--Examination of witnesses by magistrate--Record of proceedings--Contents of warrant.

A warrant shall be issued only on evidence set forth in an affidavit or affidavits presented to a committing magistrate, which establishes the grounds for issuing the warrant. If the committing magistrate is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property to be seized and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the committing magistrate may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce. Such proceeding shall be taken down by a court reporter, stenographer, or recording equipment and made part of the affidavit. The warrant shall be directed to a law enforcement officer. It shall command the officer to search, within a specified period of time not to exceed ten days, the person or place named for the property specified. The warrant shall be served in the daytime, unless the committing magistrate, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at night. It shall designate a committing magistrate to whom it shall be returned.

Source: SDC 1939 & Supp 1960, §§ 34.1102, 34.1105, 34.1106, 34.1108; SDCL, §§ 23-15-2, 23-15-9, 23-15-12, 23-15-16; SL 1970, ch 229, § 11 (c) (1); SDCL Supp, § 39-17-124; SL 1972, ch 146, § 1; SDCL, § 34-20B-65; SL 1978, ch 178, § 441.


23A-35-4.1Filing of affidavit--Sealing of affidavit.

If not filed earlier, any affidavit in support of a search warrant shall be filed with the court when the warrant and inventory are returned. Upon filing the warrant and supporting documents, the law enforcement officer may apply by separate affidavit to the court to seal the supporting affidavit from public inspection or disclosure. The court, for reasonable cause shown, may order the contents of the affidavit sealed from public inspection or disclosure but may not prohibit disclosure that a supporting affidavit was filed, the contents of the warrant, the return of the warrant, nor the inventory. The court may order that the supporting affidavit be sealed until the investigation is terminated or an indictment or information is filed. In cases of alleged rape, incest, or sexual contact, if the victim is a minor, the court may limit access to an affidavit pursuant to § 23A-6-22.1. However, a court order sealing a supporting affidavit may not affect the right of any defendant to discover the contents of the affidavit under chapter 23A-13.

Source: SL 1987, ch 180; SL 2011, ch 124, § 2.


23A-35-4.2Electronic transmission of affidavit in support of search warrant--Issue of search warrant--Proof of magistrate's signature.

A committing magistrate may, by means of electronic transmission, receive an affidavit in support of the issuance of a search warrant and may issue a search warrant by the same method. All applicable procedural and statutory requirements for the issuance of a warrant shall be met. For all procedural and statutory purposes, the electronic document shall have the same force and effect as the original. Any electronic document transmitted pursuant to this section shall be filed with the court within five business days.

The officer executing the warrant shall receive proof that the committing magistrate has signed the warrant before the warrant is executed. Proof that the committing magistrate has signed the warrant may consist of receipt of the electronic copy of the warrant.

Source: SL 1991, ch 452 (Supreme Court Rule 91-18); SL 2014, ch 259 (Supreme Court Rule 13-17), eff. Nov. 8, 2013.


23A-35-4.3Search warrant for installation, use, and maintenance of tracking device.

(a) Tracking Device Defined. As used in this section the term tracking device means an electronic or mechanical device which permits the tracking of the movement of a person or object, including GPS, "pole camera", or any other covert surveillance device.

(b) Contents. A search warrant for a tracking device may be issued by any magistrate authorized in § 23A-35-2 for the installation, use, and maintenance of a tracking device. There must be probable cause to search and seize property as set forth in this chapter and that such installation and use of this device will lead to the discovery of evidence under § 23A-35-3. The tracking-device warrant must identify the person or property to be tracked, designate the magistrate to whom it must be returned, and specify a reasonable length of time that the device may be used. The time may not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each. The warrant must command the officer to complete any installation authorized by the warrant within a specified time no longer than 10 days.

(c) Scope. Any tracking-device warrant issued under this section may authorize the use of the tracking device within the jurisdiction of the magistrate, and outside that jurisdiction if the tracking device is installed within the magistrate's jurisdiction. The executing officer must perform any installation authorized by the warrant during the daytime, unless the magistrate for good cause expressly authorizes installation at another time.

(d) Return. The tracking-device warrant must command the executing officer to return the warrant to the magistrate designated in the warrant. The officer executing a tracking-device warrant must enter on it the exact time and date the device was installed and the period during which it was used.

(e) Service. Within 10 days after the use of the tracking-device has ended, the officer executing a tracking-device warrant must 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 and by mailing a copy to the person's last known address. Upon request of the state, the judge may delay notice for reasons set forth in subsection (f).

(f) Sealing of Contents of Warrant. With respect to the issuance of any warrant under this section, a judge may, upon a showing of good cause, seal the contents of a warrant and supporting documents until the termination of an investigation, an indictment or information is filed, or as otherwise ordered by the court for purpose of preventing

(1)    Endangerment of life or physical safety of an individual;

(2)    Flight from prosecution;

(3)    Destruction of or tampering with evidence;

(4)    Intimidation of potential witnesses; or

(5)    If failure to seal would otherwise seriously jeopardize an investigation or unduly delay a trial.

Source: SL 2013, ch 265 (Supreme Court Rule 13-04), eff. Feb. 14, 2013; SL 2018, ch 299 (Supreme Court Rule 18-08), eff. July 1, 2018.


23A-35-5(Rule 41(c)(2)) Oral testimony as basis for warrant--Transcription, certification and filing with court.

When circumstances make it reasonable to do so in the absence of a written affidavit, a search warrant may be issued upon sworn oral testimony of a person who is not in the physical presence of a committing magistrate if the committing magistrate is satisfied that probable cause exists for the issuance of the warrant. The sworn oral testimony may be communicated to the magistrate by telephone or other appropriate means and shall be recorded and transcribed. After transcription the statement must be certified by the magistrate and filed with the court. This statement shall be deemed to be an affidavit for purposes of § 23A-35-4.

Source: SL 1978, ch 178, § 442.


23A-35-6(Rule 41(c)(2)(A)) Grounds for warrant on oral testimony--Verbatim contents of warrant--Signature of duplicate by requesting officer--Preparation of original by magistrate.

The grounds for issuance and the contents of a warrant issued pursuant to § 23A-35-5 shall be the same as are required by § 23A-35-4. Prior to approval of a warrant issued pursuant to § 23A-35-5, the committing magistrate shall require the law enforcement officer or the prosecuting attorney who is requesting the warrant to read to him verbatim the contents of the warrant. The magistrate may direct that specific modifications be made in the warrant. Upon approval, the magistrate shall direct the law enforcement officer or the prosecuting attorney who is requesting the warrant to sign the magistrate's name on the warrant. This warrant shall be called a duplicate original warrant and is a warrant for purposes of this chapter. In such cases, the magistrate shall have an original warrant made. The magistrate shall enter the exact time of issuance of the duplicate original warrant on the face of the original warrant.

Source: SL 1978, ch 178, § 443.


23A-35-7(Rule 41(c)(2)(B)) Return of warrant issued on oral testimony--Signature by person establishing grounds for issuance.

The return of a duplicate original warrant and its original warrant shall be in conformity with §§ 23A-35-8 to 23A-35-10, inclusive. Upon the return, the magistrate shall require the person who gave the sworn oral testimony establishing the grounds for issuance of the warrant, to sign a copy of it.

Source: SL 1978, ch 178, § 444.


23A-35-8Breaking in to execute warrant after refusal of admittance--Liberation of person executing warrant.

The officer executing a search warrant may break open any building, structure, or container or anything therein to execute the warrant if, after giving notice of his authority and purpose, he is refused admittance. An officer executing a search warrant may break open any building, structure, or container or anything therein for the purpose of liberating a person who, having entered to aid him in the execution of a warrant, is detained therein, or when necessary for his own liberation.

Source: SDC 1939 & Supp 1960, § 34.1107; SDCL, §§ 23-15-14, 23-15-15; SL 1978, ch 178, § 445.


23A-35-9Grounds for no-knock warrant--Powers of officer executing.

If a committing magistrate who has been asked to issue a search warrant is satisfied that there is probable cause to believe that if notice were given prior to its execution, the property sought in the case may be easily and quickly destroyed or disposed of, or that danger to the life or limb of the officer or another may result, he may include in the warrant a direction that the officer executing it is not required to give the notice required by § 23A-35-8. In such case, the officer who executes the warrant may, without notice of his authority and purpose, enter any structure, portion of a structure or vehicle, or anything therein, by whatever means, including breaking therein.

Source: SL 1970, ch 229, § 11 (c) (2); SDCL Supp, § 39-17-125; SDCL, § 34-20B-66; SL 1978, ch 178, § 446.


23A-35-10(Rule 41(d)) Receipt and copy of warrant given to person from whom property taken--Inventory filed with return of warrant--Copies of inventory.

An officer taking property under a 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 or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for 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 or the person from whose possession or premises the property was taken, and shall be signed under oath by the officer. The committing magistrate 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.

Source: SDC 1939 & Supp 1960, § 34.1109; SDCL, § 23-15-18; SL 1978, ch 178, § 447.


23A-35-11(Rule 41(e)) Motion in circuit court for return of property illegally seized--Restoration of property--Treatment as motion to suppress evidence.

A person aggrieved by an unlawful search and seizure may move the circuit court for the county in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which 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 property shall be restored and it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is made or comes on for hearing in the county of the trial after an indictment or information is filed, it shall be treated also as a motion to suppress under chapter 23A-8.

Source: SL 1978, ch 178, § 448.


23A-35-12(Rule 41(f)) Motion to suppress evidence in trial court.

A motion to suppress evidence may be made in the court of the county of trial as provided in chapter 23A-8.

Source: SL 1978, ch 178, § 449.


23A-35-13(Rule 41(g)) Papers filed with clerk of court by magistrate to whom warrant returned.

A committing magistrate to whom a 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 circuit court for the county in which the property was seized.

Source: SDC 1939 & Supp 1960, § 34.1111; SDCL, § 23-15-20; SL 1978, ch 178, § 450.


23A-35-14(Rule 41(h)) Special provisions for search unimpaired--Property defined.

This chapter does not modify any inconsistent provision of this code regulating search, seizure, and the issuance and execution of search warrants in circumstances for which special provision is made. The term "property" as used in this chapter includes documents, books, papers, and any other tangible objects.

Source: SL 1978, ch 178, § 451.


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