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NO. 44. AN ACT RELATING TO SEARCH WARRANTS BY FAX.

(S.14)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. Rule 41 of the Vermont Rules of Criminal Procedure is revised to read:

RULE 41. SEARCH AND SEIZURE

(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 search for and seize any

(1) evidence of the commission of a criminal offense, or

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

(3) weapons or other things by which a crime has been committed or is about to be committed, or

(4) person who has been kidnaped or unlawfully imprisoned or restrained in violation of the laws of this state, or who has been kidnaped in another jurisdiction and is now concealed within this state, or any human fetus or human corpse, or

(5) person for whose arrest there is probable cause.

(c) Issuance and Contents. A warrant shall issue only on an affidavit or affidavits sworn to by the affiant personally before a judicial officer and establishing the grounds for issuing the warrant. If the judicial officer is satisfied that there is probable cause to believe that grounds for the application exist, he shall issue a warrant identifying the property or other object of the search and naming or describing the person or place to be searched. 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 factual basis for the information furnished. Before ruling on a request for a warrant the judicial officer may examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall be taken down by a court reporter or recording equipment and made part of the affidavit. The warrant shall be directed to a law enforcement officer of the state of Vermontauthorized to enforce or assist in enforcing any law thereof. It shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property or other object specified. The warrant shall be served between the hours of 6:00 A.M. and 10:00 P.M. unless the warrant directs that it may be served at any time. The judicial officer may, by appropriate provision in the warrant, and for reasonable cause shown, authorize its execution at other times. The warrant shall designate the court to which it shall be returned.

(d) Execution and Return with Inventory. 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 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 verified by the officer. 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.

(e) Motion for Return of Property. A person aggrieved by an unlawful search and seizure may move the court to which the warrant was returned or the court in the county or territorial unit where property has been seized without warrant for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge 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. After an indictment or information is filed, a motion for return of property shall be made or heard only in the county or territorial unit of trial and shall be treated as a motion to suppress under Rule 12(b)(3).

(f) Motion To Suppress. A defendant aggrieved by an unlawful search and seizuremay 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.

(g) Definition of "Property." 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).

(h) Search Warrant by Fax.

(1) The procedure provided for in this subsection is not intended to be a replacement for the preferred procedure in subsection (c) of this rule. It is an alternative procedure to be used only under the following circumstances, which circumstances shall be made part of the affidavit:

(A) when a judicial officer is not reasonably available;

(B) when an attorney for the state has reviewed and authorized the application and affidavit under this subsection;

(C) when the warrant could not have been applied for when a judicial officer was reasonably available; and

(D) when there is reasonable cause for issuance of the warrant before the time when the judicial officer becomes reasonably available.

(2) Notwithstanding any provision of subsection (c) of this rule which is inconsistent with this subsection, a signed affidavit or affidavits and accompanying papers may be transmitted by electronic facsimile transmission (fax) to the judicial officer, who may act upon the transmitted papers as if they were originals. A 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 it shall be noted on the affidavit that the oath was administered. The determination for issuance of the warrant shall be made solely on the contents of the affidavit or affidavits provided.

(3) A warrant issued under this subsection shall state the factual circumstances for authorizing its issuance by the alternative procedure in this subsection rather than thepreferred procedure in subsection (c) of this rule.

(4) The judicial officer shall state in writing as part of the warrant or in a separate entry what steps were taken to verify the identity of the affiant.

(5) All original documents and all papers transmitted by fax to the judicial officer to obtain the warrant, the papers received by the judicial officer by fax from the applicant, and the papers received by the applicant after retransmission by the judicial officer shall have the same status and authority as the original and shall be filed with the court where the return and inventory are to be made pursuant to subsections (c) and (d) of this rule.

(6) The judicial officer retains the discretion to decline to consider an application for a search warrant by fax and to require the applicant to appear in person.

(7) The limitations set forth in subdivision (1) of this subsection shall not apply to any search warrants sought pursuant to section 1202(f) of Title 23.

Sec. 2. IMPLEMENTATION

The supreme court is authorized to purchase facsimile machines and software for judicial officers who are designated and likely to act upon applications for search warrants using this procedure.

Sec. 3. REPORTS

(a) Not later than January 15, 1998, the court administrator and the executive director of the Vermont criminal justice training council shall jointly submit a report on the implementation of this act to the Senate and House Committees on Judiciary. The report shall address the following:

(1) The steps that were taken to implement this act;

(2) The number of judicial officers who already had fax capability, the number who were supplied with fax capability and the costs incurred thereby;

(3) Any problems incurred in implementing this act as perceived by law enforcement personnel, judicial officers, court system administrators, and attorneys for the state and defense;

(4) The number of search warrants issued by fax since the effective date of this act and the percentage of that number to the total number of search warrants issued during thesame period of time;

(5) The location of all persons involved with the warrant at the time the warrant was issued, including the person who requested the warrant, the affiant, any witnesses and the judicial officer;

(6) Copies of any trial court or supreme court decisions, orders, rules, amendments or proposals involving Vermont Rules of Criminal Procedure 41(h);

(7) Any changes in technology that would apply to the electronic issuance of search warrants;

(8) Recommended changes to Rule 41(h); and

(9) Estimated time saved and costs avoided by participants who obtained warrants by fax.

(b) Not later than January 15, 1998, the court administrator and the executive director of the criminal justice training council shall report to the Senate and House Committees on Judiciary on the feasibility of using electronic mail for the issuance of search warrants.

Sec. 4. SUNSET

This act shall sunset on December 31, 2000.

Approved: June 19, 1997