R.I. Super. Ct. R. Crim. P. 41

As amended through June 7, 2024

Rule 41 - Search and Seizure.

(a)Authority to Issue Warrant. A search warrant authorized by this rule may be issued by a judicial officer of the District Court, as well as by any judicial officer of the Supreme or Superior Courts.

(b)Grounds for Issuance. A warrant may be issued under this rule to search for and seize any property :

(1) Stolen or embezzled, or obtained by any false pretense with intent to cheat or defraud;

(2) Designed or intended for use or which is or has been used as the means of committing a violation of law;

(3) Possession of which is unlawful; and/or

(4) Which is evidence of the commission of a crime.

(c)Issuance and Contents. A warrant shall issue only on written application by an officer or other person authorized by law to apply for a search warrant and supported by an affidavit, sworn to before a person authorized by this rule to issue warrants, specifically designating the place to be searched, the owner or occupant thereof, if known to the affiant, and the person or thing to be searched for, and establishing the grounds for issuing the warrant. If the judicial officer is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, the judicial officer shall issue a warrant identifying the property and naming or describing the person or place to be searched. The warrant shall be directed to any officer authorized by law to execute it where the person or place to be searched is located. The warrant shall state the grounds or probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof. The warrant shall command the officer to search forthwith the person or place named for the property specified. The warrant shall direct that it be served in the daytime, unless for good cause shown it the warrant provides for its execution at any time of day or night. The warrant shall designate the judicial officer to whom it shall be returned.

(d)Execution and Return With Inventory. The warrant may be executed only within seven (7) days after its date. 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 (1) 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 judicial officer 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)Return of Papers to Clerk. Within fourteen (14) days of the issuance of a warrant, the warrant, , accompanied by any supporting affidavits, an inventory of any property seized, and all other papers in connection therewith shall be filed with the clerk of the division of the District Court which has jurisdiction over the place of the search or, in the event of a warrant that is not executed, the court from which it was issued.

(f)Motion to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move in the division of the District Court which has jurisdiction over the place where the property was seized, or in the division of the District Court to which such person has been brought pursuant to Rule 5, to suppress for use as evidence anything so obtained on the ground that:

(1) The property was illegally seized without warrant; or

(2) The warrant is insufficient on its face; or

(3) The property seized is not that described in the warrant; or

(4) There was not probable cause for believing the existence of the grounds on which the warrant was issued; or

(5) The warrant was illegally executed.

The judicial officer shall receive evidence on any issue of fact necessary to the decision of the motion. Whether or not a motion to suppress has been made initially in the District Court, the motion to suppress may be made in the Superior Court after an indictment has been returned or an information filed or an appeal has been filed from the District Court and the Superior Court will not be bound by any prior determination of the District Court. The motion shall be made before trial in the Superior Court unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court in its discretion may entertain the motion at the trial or hearing.

(g)Return of Illegally Seized Property.

(1)District Court. If a motion to suppress is granted by the District Court, it shall not order the State to return illegally seized property unless:

(i) An indictment or an information charging an offense involving such property has not been returned or filed within six (6) months of the determination of the District Court

(ii) The grand jury has pursuant to Rule 6(f) reported its failure to find an indictment charging an offense involving such property; or

(iii) The Attorney General has pursuant to Rule 6.1 reported that the Attorney General does not intend to file an information or seek an indictment charging an offense involving such property.

In no event shall property which is otherwise subject to lawful detention be ordered returned.

(2)Superior Court.

(i) Prior to Trial. If a motion to suppress is granted by the Superior Court prior to commencement of trial, the court shall defer ruling upon an application for return of illegally seized property if the State, within seven (7) days of entry of the order to suppress, files a notice to appeal the order of suppression pursuant to §§ 9-24-32 and 9-24-33 of the General Laws of 1956 (1969 Reenactment).

(ii) During Trial. If a motion to suppress evidence is granted after commencement of trial, the court shall order illegally seized property which is not otherwise subject to lawful detention to be returned.

(h)Scope and Definition. This rule does not modify any act, inconsistent with it, regulating search, seizure, and the issuance and execution of search warrants in circumstances for which special provision is made. The term "property" is used in this rule to include documents, books, papers and any other tangible objects.

R.I. Super. Ct. R. Crim. P. 41

Last amended by Order dated June 22, 2017, effective 9/5/2017.

1972 Notes

This rule, which is fashioned in large part upon Federal Rule 41, is similar to existing Rhode Island statutory provisions governing search warrants. G.L.1956 (1969 Reenactment), §§ 12-5-1 through 12-5-9.

Subdivision (a) is essentially the same as G.L.1956 (1969 Reenactment),s 12-5-1 (Supp.1970). A 1969 amendment to this provision abolished the authority of clerks of the District Court to issue search warrants.

Subdivision (b) differs from both the federal rule and G.L. 1956 (1969 Reenactment), § 12-5-2 by the addition of paragraph (4) which permits a warrant to issue for the search of property "which is evidence of the commission of a crime." This additional ground for issuance of a warrant reflects the holding of the United States Supreme Court in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), which overruled the long standing line of cases prohibiting searches for and seizure of "mere evidence."

Subdivision (c), which is essentially the same as the federal rule, alters Rhode Island practice by permitting in all cases the affidavit in support of an application for a warrant to be made by any person having knowledge of the facts, rather than requiring a statement under oath from a law enforcement officer only. See G.L. 1956 (1969 Reenactment), § 12-5-3 (Supp.1970). Under the rule only those persons who are authorized by law may apply for a warrant and it may be directed only to those officers authorized to execute it. This continues existing practice under G.L.1956 (1969 Reenactment), § 12-5-3 (Supp.1970). The final sentence of this subdivision, permitting a warrant to be executed at "any time of day or night" upon a showing of good cause, is a variation from the federal rule.

Subdivision (d) departs from the federal rule by requiring the warrant to be executed within seven days rather than ten; this conforms to G.L.1956 (1969 Reenactment), § 12-5-5. The subdivision departs from the Rhode Island provision by requiring the return to be made "promptly" rather than within seven days from the date of service. Id.

Subdivision (e) is essentially the same as subdivision (f) of the federal rules; it is basically the same as G.L.1956 (1969 Reenactment), § 12-5-6.

Subdivision (f), which provides for a motion to suppress, varies considerably from its federal counterpart. The significant difference is the authorization for the motion to suppress to be made either in the District Court or, after indictment or appeal, in the Superior Court, or in both courts. Where the motion is made initially in the District Court, that court's decision will not be binding on the Superior Court in the event the motion is made again in the latter court. This procedure reflects current practice which is necessitated by the concurrent criminal jurisdiction of the District and Superior Courts.

The rule also differs from its federal counterpart by the addition of subdivision (g) governing return of illegally seized property. Instead of providing for immediate return after entry of an order to suppress, the rule provides different requirements for return based upon which court enters the order and at what stage of the proceeding. Paragraph (1) of this subdivision restricts return by the District Court until either six months have elapsed without an indictment being returned, or the grand jury has reported its failure to return an indictment. By permitting the State to retain the property during this period and to use it in seeking an indictment, it assures the State a means of review of an adverse order of the District Court. At present, stenographic records of District Court proceedings are not made. Consequently, if the seized property were ordered returned upon entry of an order to suppress, the prosecution would be denied any effective review of that determination. On the other hand, a defendant who is unsuccessful on a motion to suppress in the District Court is able to renew his motion when the case reaches the Superior Court after indictment. The rule is designed to preserve the State's right to a determination of this issue in a court of record by allowing it to seek indictment and then have the defendant move again in the Superior Court. If, however, the State chooses not to pursue the matter, or the grand jury fails to indict, then the District Court may order return of the property.

Under paragraph (2) the Superior Court is to defer ruling on an application for return of property which, in pre-trial proceedings, it determines was illegally seized if the State pursues an interlocutory appeal under G.L.1956 (1969 Reenactment), §§ 9-24-32 and 9-24-33. Under paragraph (3), however, if the Superior Court orders suppression during the trial it may order the property returned immediately.

In no event, whether before, during or after trial, is a court authorized to order return of property which is subject to forfeiture or which otherwise may be detained.

Finally, subdivision (h), which is identical to subdivision (g) of the federal rule, leaves in effect all special statutory provisions regulating search and seizure. These include, e.g., G.L.1956 (1969 Reenactment), §§ 12-5.1-1 through 12-5.1-16 (Supp.1970) (interception of wire and oral communications); G.L.1956 (1968 Reenactment), § 19-26-13 (Supp.1970) (pawned property); G.L.1956 (1968 Reenactment), § 20-34-6 (wild birds or animals).

The proposed rule does not contain a provision comparable to G.L.1956 (1969 Reenactment), § 12-5-4, which deals with surety for costs by the person seeking a warrant and exemption therefrom for law enforcement officers. The statutory requirements remain in effect.

1975 Notes

Rule 41 has been amended to add the term "information" where appropriate in subdivisions (f) and (g). In addition, paragraph (iii) has been added to subdivision (g) to provide for the return of property found to have been illegally seized when the Attorney General decides not to file an information or to seek an indictment.