Print Version
Previous PageFile uploaded: 2/8/2019

Rule 40. Search Warrants

 

(a) Definitions.

 

As used in this rule:

 

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

 

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

 

(a)(3) "Searchwarrant" is an order issued by a magistrate in the name of the state anddirected to a peace officer, describing with particularity the thing, place, orperson to be searched and the property or evidence to be seized and includes anoriginal written or recorded warrant or any copy, printout, facsimile or otherreplica intended by the magistrate issuing the warrant to have the same effectas the original.

 

(b) Grounds for issuance.

 

Property or evidence maybe seized pursuant to a search warrant if there is probable cause to believeit:

 

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

 

(b)(2) has been used or is possessed for the purpose of being usedto 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 warrantshall not issue except upon probable cause, supported by oath or affirmation,and shall particularly describe the person or place to be searched and theperson, property, or evidence to be seized.

 

(c)(2) If the itemsought to be seized is evidence of illegal conduct, and is in the possession ofa person or entity for which there is insufficient probable cause shown to themagistrate to believe that such person or entity is a party to the allegedillegal conduct, no search warrant shall issue except upon a finding by themagistrate that the evidence sought to be seized cannot be obtained bysubpoena, or that such evidence would be concealed, destroyed, damaged, oraltered if sought by subpoena. If such a finding is made and a search warrantissued, the magistrate shall direct upon the warrant such conditions thatreasonably afford protection of the following interests of the person or entityin possession of such evidence:


(c)(2)(A) protection against unreasonable interference with normalbusiness;

 

(c)(2)(B) protection against the loss or disclosure of protectedconfidential 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 searchwarrant shall be served in a readable form upon the person or place to besearched.

 

(e) Time for service ‑‑Officer may request assistance.

 

(e)(1) The magistrateshall insert a direction in the warrant that it be served in the daytime,unless the affidavit or recorded testimony states sufficient grounds to believea search is necessary in the night to seize the property prior to its beingconcealed, destroyed, damaged, altered, or for other good reason; in which casethe magistrate may insert a direction that it be served any time of the day ornight.

 

(e)(2) The searchwarrant shall be served within ten days from the date of issuance. Any searchwarrant not executed within this time shall be void and shall be returned tothe court or magistrate as not executed.

 

(e)(3) An officer mayrequest other persons to assist in conducting the search.

 

(f) Receipt for property taken.

 

The officer, whenseizing property pursuant to a search warrant, shall give a receipt to theperson from whom it was seized or in whose possession it was found. If noperson is present, the officer shall leave the receipt in the place where theproperty was found.

 

(g) Return ‑‑ Inventory of property taken.

 

The officer, afterexecution of the warrant, shall promptly make a signed return of the warrant toa magistrate of the issuing court and deliver a written or recorded inventoryof anything seized, stating the place where it is being held.

 

(h) Safekeeping of property.

 

The officer seizing theproperty shall be responsible for its safekeeping and maintenance until thecourt otherwise orders.

 


(i) Magistrate to retain and file copies-‑ Documents sealed for twenty days ‑- Forwarding of record tocourt with jurisdiction.

 

(i)(1) At the time of issuance, the magistrate shallretain and seal a copy of the search warrant, the application and allaffidavits or other recorded testimony on which the warrant is based and shall,within a reasonable time, file those sealed documents in court files which aresecured against access by the public. Those documents shall remain sealed untiltwenty days following the issuance of the warrant unless that time is extendedor reduced under Section (m). Unsealed search warrant documents shall be filedin the court record available to the public.

 

(i)(2) Sealing and retention of the file may beaccomplished by:

 

(i)(2)(A) placing paperdocuments or storage media in a sealed envelope and filing the sealed envelopein a court file not available to the public;

 

(i)(2)(B) storing the documents by electronic or othermeans under the control of the court in a manner reasonably designed topreserve the integrity of the documents and protect them against disclosure tothe public during the period in which they are sealed; or

 

(i)(2)(C) filing through theuse of an electronic filing system operated by the State of Utah which systemis designed to transmit accurate copies of the documents to the court filewithout allowing alteration to the documents after issuance of the warrant bythe magistrate.

 

(j) Findings required for service without notice.  If the magistrate finds upon proof,under oath, that the object of the search may be quickly destroyed, disposedof, or secreted, or that physical harm may result to any person if notice weregiven, the magistrate may direct that the officer need not give notice ofauthority and purpose before entering the premises to be searched.

 

(k) Violation of health, safety, building, or animal cruelty lawsor ordinances ‑‑ Warrant to obtainevidence.

 

In addition to otherwarrants provided by this rule, a magistrate, upon a showing of probable causeto believe a state, county, or city law or ordinance, has been violated inrelation to health, safety, building, or animal cruelty, may issue a warrantfor the purpose of obtaining evidence of a violation. A warrant may be obtainedfrom a magistrate upon request of a peace officer or state, county, ormunicipal health, fire, building, or animal control official only afterapproval by a prosecuting attorney. A search warrant issued under this sectionshall be directed to any peace officer within the county where the warrant isto be executed, who shall serve the warrant. Other concerned personnel mayaccompany the officer.

 

(l) Remotely communicated search warrants.

 

(l)(1) Means of communication. When reasonableunder the circumstances, a search warrant may be issued upon sworn or affirmedtestimony of a person who is not in the physical presence of the magistrate, provided the magistrate is satisfied thatprobable cause exists for the issuance of the warrant. All communicationbetween the magistrate and the peace officer or prosecuting attorney requestingthe warrant may be remotely transmitted by voice, image, text, or anycombination of those, or by other means.

 

(l)(2) Communication to be recorded. Alltestimony upon which the magistrate relies for a finding of probable causeshall be on oath or affirmation. The testimony and content of the warrant shallbe recorded. Recording shall be by writing or by mechanical, magnetic,electronic, photographic storage or by other means.

 

(l)(3) Issuance. If the magistrate finds thatprobable cause is shown, the magistrate shall issue a search warrant.

 

(l)(4) Signing warrant. Upon approval, themagistrate may direct the peace officer or the prosecuting attorney requestinga warrant from a remote location to sign the magistrate's name on a warrant ata remote location.

 

(l)(5) Filing of warrant and testimony. Thewarrant and recorded testimony shall be retained by and filed with the courtpursuant to Section (i). Filing may be by writing orby mechanical, magnetic, electronic, photographic storage or by other means.

 

(l)(6) Usable copies made available. Except asprovided in Sections (i) and (m) of this rule, anyperson having standing may request and shall be provided with a copy of thewarrant and a copy of the recorded testimony submitted in support of theapplication for the warrant. The copies shall be provided in a reasonablyusable form.

 

(m) Sealing and Unsealing of Search Warrant Documents.

 

(m)(1) Application for sealing of documents relatedto search warrants. A prosecutor or peace officer may make a written orotherwise recorded application to the court to have documents or recordsrelated to search warrants sealed for a time in addition to the sealingrequired by Subsection (i)(1). Upon a showing of goodcause, the court may order the following 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 which the searchwarrant is based;

 

(m)(1)(D) the application, affidavits or other recorded testimony andorder for sealing the documents.

 

(m)(2) Sealing of search warrant documents.Search warrant documents are public record that may be sealed in entirety or inpart and not placed in the public file if all or part of the information inthem would:

 

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

 

(m)(2)(B) pose a clearly unwarranted invasion of or harm to a person?sreputation or privacy; or

 

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

 

Sealed documents shallbe maintained in a file not available to the public. If a document is not sealedin its entirety, the court may order a copy of the document with the sealedportions redacted to be placed in the public file and an un‑redacted copyto be placed in the sealed file. Except as required by Section (i), no document may be designated as ?Filed under Seal? or?Confidential? unless it is accompanied by a court order sealing the document.

 

(m)(3) Unsealing of documents. Any personhaving standing may file a motion to unseal search warrant documents withnotice to the prosecutor and law enforcement agency. If the prosecutor or lawenforcement agency files an appropriate and timely objection to the unsealing,the court may hold a hearing on the motion and objection. Where no objection tounsealing the documents is filed, the defendant may prepare an order for entryby the court. The court may order the unsealing of the documents or ordercopies of the documents to be delivered to a designated person withoutunsealing the documents and require the person receiving the documents not todisclose the contents to any other person without the authorization of thecourt.

 

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

 

(m)(4)(A) The documentsmay remain sealed for a period of up to six months.  Prior to the endof the six month period, the prosecutor, peace officer, or a person with adirect interest in the records may apply to the court to seal the documents foran additional period of up to six months.  Upon a finding thatconditions for sealing remain, the court may order the documents to be sealedfor up to six additional months.  The prosecutor, peace officer, or aperson with standing may seek, and the court may grant, additional six monthextensions provided conditions for sealing remain.

 

(m)(4)(B) If searchwarrant documents have remained sealed for at least three years, theprosecutor, peace officer, or a person with standing may apply to thecourt to seal the documents indefinitely.  Upon a finding that theconditions for sealing remain, the court may order that the documents be sealedindefinitely, pending further order from the court.

 

 

ADVISORY COMMITTEE NOTE:

Terms used are intendedto be interpreted liberally in order to facilitate remote communications as ameans of applying for and issuing search warrants while at the same timepreserving the integrity of the probable cause application and the terms ofwarrants that are authorized.

(a) This section isadapted from former Sec. 77-23-201 Utah Code Ann.

(b) This section isadapted from former Sec. 77-23-202 Utah Code Ann.

(c) This section isadapted from former Sec. 77-23-203 Utah Code Ann.

(d) This section isadapted from former Sec. 77-23-204 Utah Code Ann.

(e) This section isadapted from former Sec. 77-23-205 Utah Code Ann.

(f) This section isadapted from former Sec. 77-23-206 Utah Code Ann. The statute contained thewords ?Failure to give or leave a receipt does not render the evidence seizedinadmissible at trial.? This rule is not a departure from that originallegislative intent. While the committee did not consider it necessary toaddress admissibility in a procedural rule, the elimination of that languagedoes not suggest that failure to comply with the receipt requirement should bea basis for exclusion of the evidence seized.

(g) This section isadapted from former Sec. 77-23-207 Utah Code Ann.

(h) This section is adaptedfrom former Sec.77-23-208 Utah Code Ann.

(i)Subsection (1) is added in compliance with the order of the Utah Supreme Courtin Anderson v. Taylor, 2006 UT 79. Subsection (2) is added to allow fora planned electronic search warrant system operated by the Utah Bureau Of Criminal Identification, or other systems which might beemployed by a magistrate. This provision supercedesthe supervisory orders of the Court in Anderson v. Taylor for that purpose.

(j) This section isadapted from former Sec. 77-23-210(2) Utah Code Ann.

(k) This section isadapted from former Sec. 77-23-211 Utah Code Ann.

(l) This section wasformerly Rule 40 Remotely Communicated Search Warrants. Terms used are intendedto be interpreted liberally in order to facilitate remote communications as ameans of applying for and issuing search warrants while at the same timepreserving the integrity of the probable cause application and the terms ofwarrants that are authorized.

(m) (New section)