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Rule 40. Search Warrants

 

(a) Definitions.

 

As used in this rule:

 

(a)(1)"Daytime" means the hours beginning at 6a.m. and ending at 10 p.m. local time.

 

(a)(2)"Recorded "or ?recording? includes theoriginal recording of testimony, a return or other communication or any copy,printout, facsimile, or other replication that is intended by the person makingthe recording to have the same effect as the original.

 

(a)(3) "Search warrant" is an order issued by amagistrate in the name of the state and directed to a peace officer, describingwith particularity the thing, place, or person to be searched and the propertyor evidence to be seized and includes an original written or recorded warrantor any copy, printout, facsimile or other replica intended by the magistrateissuing the warrant to have the same effect as the original.

 

(b) Grounds for issuance.

 

Property or evidence may be seized pursuant to a searchwarrant if there is probable cause to believe it:

 

(b)(1) was unlawfully acquired or is unlawfully possessed;

 

(b)(2) has been used or is possessed for the purpose ofbeing used to commit or conceal the commission of an offense; or

 

(b)(3) is evidence of illegal conduct.

 

(c) Conditions precedent to issuance.

 

(c)(1) A search warrant shall not issue except upon probablecause, supported by oath or affirmation, and shall particularly describe theperson or place to be searched and the person, property, or evidence to beseized.

 

(c)(2) If the item sought to be seized is evidence ofillegal conduct, and is in the possession of a person or entity for which thereis insufficient probable cause shown to the magistrate to believe that suchperson or entity is a party to the alleged illegal conduct, no search warrantshall issue except upon a finding by the magistrate that the evidence sought tobe seized cannot be obtained by subpoena, or that such evidence would beconcealed, destroyed, damaged, or altered if sought by subpoena. If such afinding is made and a search warrant issued, the magistrate shall direct uponthe warrant such conditions that reasonably afford protection of the followinginterests of the person or entity in possession of such evidence:


(c)(2)(A) protection against unreasonable interference withnormal business;

 

(c)(2)(B) protection against the loss or disclosure ofprotected confidential sources of information; or

 

(c)(2)(C) protection against prior or direct restraints onconstitutionally protected rights.

 

(d) Search warrant served in readable form.

 

A copy of a search warrant shall be served in a readableform upon the person or place to be searched.

 

(e) Time for service ‑‑ Officer may requestassistance.

 

(e)(1) The magistrate shall insert a direction in thewarrant that it be served in the daytime, unless the affidavit or recordedtestimony states sufficient grounds to believe a search is necessary in thenight to seize the property prior to its being concealed, destroyed, damaged,altered, or for other good reason; in which case the magistrate may insert adirection that it be served any time of the day or night.

 

(e)(2) The search warrant shall be served within ten daysfrom the date of issuance. Any search warrant not executed within this timeshall be void and shall be returned to the court or magistrate as not executed.

 

(e)(3) An officer may request other persons to assist inconducting the search.

 

(f) Receipt for property taken.

 

The officer, when seizing property pursuant to a searchwarrant, shall give a receipt to the person from whom it was seized or in whosepossession it was found. If no person is present, the officer shall leave thereceipt in the place where the property was found.

 

(g) Return ‑‑ Inventory of property taken.

 

The officer, after execution of the warrant, shall promptlymake a signed return of the warrant to a magistrate of the issuing court anddeliver a written or recorded inventory of anything seized, stating the placewhere it is being held.

 

(h) Safekeeping of property.

 

The officer seizing the property shall be responsible forits safekeeping and maintenance until the court otherwise orders.

 


(I) Magistrate to retain and file copies ‑ Documentssealed for twenty days ‑Forwarding of record to court with jurisdiction.

 

(i)(1) At the time of issuance, the magistrate shall retainand seal a copy of the search warrant, the application and all affidavits orother recorded testimony on which the warrant is based and shall, within areasonable time, file those sealed documents in court files which are securedagainst access by the public. Those documents shall remain sealed until twentydays following the issuance of the warrant unless that time is extended orreduced under Section (m). Unsealed search warrant documents shall be filed inthe court record available to the public.

 

(i)(2) Sealing and retention of the file may be accomplishedby:

 

(i)(2)(A) placing paper documents or storage media in asealed envelope and filing the sealed envelope in a court file not available tothe public;

 

(i)(2)(B) storing the documents by electronic or other meansunder the control of the court in a manner reasonably designed to preserve theintegrity of the documents and protect them against disclosure to the publicduring the period in which they are sealed; or

 

(i)(2)(C) filing through the use of an electronic filingsystem operated by the State of Utah which system is designed to transmitaccurate copies of the documents to the court file without allowing alterationto the documents after issuance of the warrant by the magistrate.

 

(j) Findings required for service without notice.? If the magistrate finds upon proof, underoath, that the object of the search may be quickly destroyed, disposed of, orsecreted, or that physical harm may result to any person if notice were given,the magistrate may direct that the officer need not give notice of authorityand purpose before entering the premises to be searched.

 

(k) Violation of health, safety, building, or animal crueltylaws or ordinances ‑‑ Warrant to obtain evidence.

 

In addition to other warrants provided by this rule, amagistrate, upon a showing of probable cause to believe a state, county, orcity law or ordinance, has been violated in relation to health, safety,building, or animal cruelty, may issue a warrant for the purpose of obtainingevidence of a violation. A warrant may be obtained from a magistrate uponrequest of a peace officer or state, county, or municipal health, fire,building, or animal control official only after approval by a prosecutingattorney. A search warrant issued under this section shall be directed to anypeace officer within the county where the warrant is to be executed, who shallserve the warrant. Other concerned personnel may accompany the officer.

 

(l) Remotely communicated search warrants.

 


(l)(1) Means of communication. When reasonable under thecircumstances, a search warrant may be issued upon sworn or affirmed testimonyof a person who is not in the physical presence of the magistrate, provided themagistrate is satisfied that probable cause exists for the issuance of thewarrant. All communication between the magistrate and the peace officer orprosecuting attorney requesting the warrant may be remotely transmitted byvoice, image, text, or any combination of those, or by other means.

 

(l)(2) Communication to be recorded. All testimony uponwhich the magistrate relies for a finding of probable cause shall be on oath oraffirmation. The testimony and content of the warrant shall be recorded.Recording shall be by writing or by mechanical, magnetic, electronic,photographic storage or by other means.

 

(l)(3) Issuance. If the magistrate finds that probable causeis shown, the magistrate shall issue a search warrant.

 

(l)(4) Signing warrant. Upon approval, the magistrate maydirect the peace officer or the prosecuting attorney requesting a warrant froma remote location to sign the magistrate's name on a warrant at a remotelocation.

 

(l)(5) Filing of warrant and testimony. The warrant andrecorded testimony shall be retained by and filed with the court pursuant toSection (i). Filing may be by writing or by mechanical, magnetic, electronic,photographic storage or by other means.

 

(l)(6) Usable copies made available. Except as provided inSections (i) and (m) of this rule, any person having standing may request andshall be provided with a copy of the warrant and a copy of the recordedtestimony submitted in support of the application for the warrant. The copiesshall be provided in a reasonably usable form.

 

(m) Sealing and Unsealing of Search Warrant Documents

 

(m)(1) Application for sealing of documents related tosearch warrants. A prosecutor or peace officer may make a written or otherwiserecorded application to the court to have documents or records related tosearch warrants sealed for a time in addition to the sealing required bySubsection (i)(1). Upon a showing of good cause, the court may order thefollowing documents to be sealed:

 

(m)(1)(A) applications for search warrants;

 

(m)(1)(B) search warrants;

 

(m)(1)(C) affidavits or other recorded testimony upon whichthe search warrant is based;

 

(m)(1)(D) the application, affidavits or other recordedtestimony and order for sealing the documents.

 


(m)(2) Sealing of search warrant documents. Search warrantdocuments are public record that may be sealed in entirety or in part and notplaced in the public file if all or part of the information in them would:

 

(m)(2)(A) cause a substantial risk of harm to a person?ssafety;

 

(m)(2)(B) pose a clearly unwarranted invasion of or harm toa person?s reputation or privacy; or

 

(m)(2)(C) pose a serious impediment to the investigation.

 

Sealed documents shall be maintained in a file not availableto the public. If a document is not sealed in its entirety, the court may ordera copy of the document with the sealed portions redacted to be placed in thepublic file and an un‑redacted copy to be placed in the sealed file.Except as required by Section (i), no document may be designated as ?Filedunder Seal? or ?Confidential? unless it is accompanied by a court order sealingthe document.

 

(m)(3) Unsealing of documents. Any person having standingmay file a motion to unseal search warrant documents with notice to theprosecutor and law enforcement agency. If the prosecutor or law enforcementagency files an appropriate and timely objection to the unsealing, the courtmay hold a hearing on the motion and objection. Where no objection to unsealingthe documents is filed, the defendant may prepare an order for entry by thecourt. The court may order the unsealing of the documents or order copies ofthe documents to be delivered to a designated person without unsealing thedocuments and require the person receiving the documents not to disclose thecontents to any other person without the authorization of the court.

 

(m)(4) Length of time documents may remain sealed.

 

(m)(4)(A) The documents may remain sealed for a period of upto six months.? Prior to the end of thesix month period, the prosecutor, peace officer, or a person with a directinterest in the records may apply to the court to seal the documents for anadditional period of up to six months.?Upon a finding that conditions for sealing remain, the court may orderthe documents to be sealed for up to six additional months.? The prosecutor, peace officer, or a personwith standing may seek, and the court may grant, additional six monthextensions provided conditions for sealing remain.

 

(m)(4)(B) If search warrant documents have remained sealedfor at least three years, the prosecutor, peace officer, or a person withstanding? may apply to the court to sealthe documents indefinitely.? Upon afinding that the conditions for sealing remain, the court may order that thedocuments be sealed indefinitely, pending further order from the court.

 

ADVISORYCOMMITTEE NOTE