Rule 41. Search and Seizure

(a) Scope. This Rule does not modify any special statutory provision regulating search, seizure, or the issuance and execution of search warrants.

(b) Authority to Issue a Search Warrant. A search warrant may be issued by the court or a justice of the peace as authorized by law.

(c) Grounds to Issue a Search Warrant. A warrant may be issued under this Rule to search for and seize any (1) property that constitutes evidence of the commission of a crime; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a crime; or (4) person for whose arrest there is probable cause, or who is unlawfully restrained.

(d) Definition of Property. The term "property" is used in this Rule and in Rules 41A and 41B to include, but not be limited to, the following:

(1) Documents, books, papers, and any other tangible objects;

(2) Electronically stored information;

(3) Information derived from a tracking device;

(4) Biological materials, including hair, blood, saliva, fingernail clippings or scrapings and materials obtainable by swab;

(5) Fingerprints, palmprints, and footprints; and

(6) Photographs, videos, or any other digital image of any person or object.

(e) Requesting a Search Warrant.

(1) In General. A search warrant request must be made in the presence of the court or justice of the peace unless the court or justice of the peace, upon request of the applicant, determines it reasonable under the circumstances to allow a search warrant request to be made outside the presence of the court or justice of the peace.

(2) Requesting a Search Warrant in the Presence of the Court or Justice of the Peace. A search warrant request made in the presence of the court or justice of the peace must be in the form of a written affidavit sworn to before the court or justice of the peace. The affidavit must specifically designate the person or place or other property to be searched or the tracking device to be installed and used, and the person or property to be searched for or tracked. Before ruling on the request the court or justice of the peace may hear evidence under oath or affirmation which shall be taken down by a court reporter or recording equipment or recorded in a manner that is capable of producing a record adequate for purposes of review.

(3) Requesting a Search Warrant Outside the Presence of the Court or Justice of the Peace. A search warrant request to be made outside the presence of the court or justice of the peace, if permitted by the court or justice of the peace, shall be as provided by Rule 41C.

(f) Issuing a Search Warrant.

(1) Duty of the Court or Justice of the Peace. If the court or justice of the peace to whom the search warrant request is made concludes that there is probable cause to believe that the grounds for the search exist, the court or justice of the peace shall issue a search warrant designating, except as otherwise provided in Rule 41B, the person, place, or other property to be searched, and the person or place or other property to be searched for.

(2) Contents of the Search Warrant.

(A) In General. The search warrant shall be directed to any officer authorized to enforce or assist in enforcing any law of the State of Maine. It shall state the names of the persons whose affidavits have been taken in support thereof. Except as otherwise provided in Rule 41B it shall command the officer to search the person or place named for the person or property specified. It shall designate the Unified Criminal Docket to which it shall be returned. A copy of the search warrant shall promptly be filed with the Unified Criminal Docket designated in the warrant by the applicant. The warrant and affidavit materials shall be treated as impounded until the return is filed.

(B) Nighttime Search Warrant. The warrant shall direct that it be executed between the hours of 7 a.m. and 9 p.m., unless the court or justice of the peace, by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at another time.

(C) Unannounced Execution of Search Warrant. The warrant may direct that it be executed by an officer without providing notice of the officer's purpose and office if the court or justice of the peace so directs by appropriate provision in the warrant. The court or justice of the peace may so direct in the warrant upon a finding of reasonable cause showing that

(1) The property sought may be quickly or easily altered, destroyed, concealed, removed, or disposed of if prior notice is given;

(2) The escape of the person sought may be facilitated if prior notice is given;

(3) The person sought, the person from whom or from whose premises the property is sought, or an occupant thereof, may use deadly or nondeadly force in resistance to the execution of the warrant, and dispensing with prior notice is more likely to ensure the safety of officers, occupants, or others;

(4) Such facts and circumstances exist as would render reasonable the warrant's execution without notice.

(g) Execution and Return with Inventory. The warrant may be executed and returned only within 14 days after its date. Upon the expiration of the 14 days, the warrant must be returned to the Unified Criminal Docket designated in the warrant. 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. If the person is not present, the officer shall leave the copy of the warrant and the receipt at the premises. The return shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person from whose possession or premises the property was taken, if the person is present, or in the presence of at least one credible person other than the applicant for the warrant. It shall be verified by the officer. Upon request the justice or judge sitting in the Unified Criminal Docket designated in the warrant shall 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.

(h) Return of Papers to Clerk. The justice or judge sitting in the Unified Criminal Docket to which a search 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 Unified Criminal Docket for the district and division in which the property was seized. The court, upon motion or upon the court's own motion, may for good cause order the clerk to impound some or all of the warrant materials until a specified date or event.

(i) Attorney for State to File Notice. If a complaint, indictment, or information is filed subsequent to a search, the attorney for the State must file a notice with the clerk of the Unified Criminal Docket of the district in which the search took place stating the venue of the case. The clerk will transfer the search warrant to the court having jurisdiction and venue over the criminal action instituted by the complaint, indictment, or information.

(j) Motion for Return of Property. A person aggrieved by an unlawful seizure of property may file a motion in the Unified Criminal Docket for the return of the property on the ground that it 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 court shall order that the property be restored unless otherwise subject to lawful detention. The motion may be joined with a motion to suppress evidence.

Committee Notes

Committee Advisory Note [December 2014] The Rule parallels the content of Rule 41 of the Maine Rules of Criminal Procedure but differs in the following respects. First, in subdivisions (b), (e)(1), (2) and (3), (f)(1), (2)(C), (h), second paragraph, and (j), including in the headings to subdivision (e)(2), (3), and (f)(1), the word "court" replaces the words "Superior Court justice, District Court Judge" or "justice, judge." See Committee Advisory Note [December 2014] to M.R.U. Crim. P. 3(b) and (d). Second, in subdivision (f)(2)(A) the words "by the applicant" have been added after the word "warrant" to clarity that the duty to file the warrant with the Unified Criminal Docket is imposed upon the applicant. Third, in subdivision (f)(2)(A), (g), (h), (i), and (j), "Unified Criminal Docket" replaces "District Court" or a variant thereof. Fourth, in subdivision (g) "10 days" is changed to "14 days" in order to reflect the Court's preference for calculating time periods for rule purposes in increments of 7 rather than increments of 5. Fifth, in subdivision (i) the letter "s" in the word "state" is capitalized because the word is used in the term "attorney for the State." See Committee

Advisory Note [December 2014] to M.R.U. Crim. P. 3(d) and (f). Sixth, in subdivision (j) the special filing procedure for the motion when no charge has yet been filed is not carried forward since the Superior Court no longer functions differently from the District Court in handling motions for return of property. The motion, whether a charge is pending or is not yet pending, must be filed in the appropriate Unified Criminal Docket.

[Advisory Notes to former Maine Rules of Criminal Procedure]

Advisory Committee Note – 1975 [M.R. Crim. P. 41(c), (d) and (f).] The changes in subdivisions (c), (d) and (f) of Rule 41 clarify the procedure on the return of search warrants. As originally drafted there was a patent ambiguity in the rule, which should be resolved. The amended rule requires that the warrant designate the division of the District Court to which the search warrant should be returned; it further requires that the District Court Judge upon request deliver a copy of the inventory to the indicated individuals and, finally, requires the Judge of the District Court to whom the warrant is returned to attach to the warrant a copy of the return inventory and other papers and file them with the clerk of the District Court for the district and division in which the property was seized. This should unify the procedure for return of search warrants and assure that they are readily available for inspection by Counsel for the state and counsel for the defendant in the office of the clerk of the District Court. It is of the utmost importance that the clerk note filing in the criminal docket. In the event of a suppression motion in the Superior Court, the Superior Court can order that the records be transferred to the Superior Court for its examination in connection with the suppression motion.

Advisory Committee Note – 1976 [M.R. Crim. P. 41(c).] This amendment makes Rule 41(c) similar to the corresponding federal rule. It eliminates the necessity of stating the grounds for probable cause in the warrant although still requires that the names of the persons whose affidavits were taken in support of the issuance of the warrant appear on the warrant. This will eliminate many of the difficulties encountered in State v. Gamage, 340 A.2d 1 (1975). The amendment also permits a warrant to be executed in the nighttime if authorized by the issuing authority for reasonable cause, eliminating the necessity that the affidavit be "positive" for a nighttime search.

Advisory Committee Note – 1978 Maine Rule of Criminal Procedure 41(c): The first, second, and fifth sentences of Rule 41(c) are amended to make them consistent on the following two points: 1) That either a person or a place may be searched pursuant to a warrant and 2) That a search of a place may be for either a person or property. The first sentence recognized the second point but not the first. The second and fifth sentences recognized the first point but not the second. The amendment makes all three sentences consistent. The fifth sentence is amended to delete "forthwith." Inclusion of the term set up an inconsistency with the specific ten-day time limit in Rule 41(d), first sentence. "Forthwith" was deleted from F.R.Cr.P. 41(c) in 1972 in favor of a specific time limit. The sixth sentence is amended to substitute a definite time period for the somewhat vague term "daytime." The times are defined by 1 M.R.S. § 151. The Federal Rule was amended in 1972 to define "daytime" as a specific time period. F.R.Cr.P. 41 (h). Some law enforcement officers have expressed concern over the vagueness of the present term. The term "judge or complaint justice" is substituted for the terms "issuing authority" or "person authorized by this rule to issue warrants," with which it had been used interchangeably. Maine Rule of Criminal Procedure 41(d): The third sentence of Rule 41(d) is added to make clear that personal service of the warrant and receipt is to be effected if practicable. In the fourth sentence the words "shall be made promptly and" are deleted as they add nothing to the specific deadline imposed by the first sentence. The fifth sentence is amended to require that, if practicable, the inventory be made in the presence of the person from whose possession or premises the property was taken, whether or not the applicant for the warrant is one of the executing officers. Previously, the requirement hinged on the largely fortuitous circumstance whether the applicant was one of the executing officers.

Advisory Committee Note – 1980 Maine Rule of Criminal Procedure 41(a): Rule 41(a) is amended to conform to 15 M.R.S. § 55, as repealed and replaced by 1979 Laws, c. 343, § 1, authorizing district judges and complaint justices to issue search warrants "for any place in the State . . ." (15 M.R.S. § 55). Maine Rule of Criminal Procedure 41(b): Rule 41(b) is amended to broaden its coverage consistent with 15 M.R.S. § 55 and to bring it back into conformity with F.R.Cr.P. 41(b), as amended effective August l, 1979. Maine Rule of Criminal Procedure 41(c): Rule 41(c) is amended to conform to that portion of 15 M.R.S. § 55, as repealed and replaced by 1979 Laws, c. 343, § 1, which authorizes evidence in support of a search warrant to consist of "affidavits and other evidence under oath or affirmation which is capable of being reduced to a record for purposes of review" (15 M.R.S. § 55). Settle of the new language of Section (c) is taken from F.R.Cr.P. 41(c).

Advisory Committee Note – 1983 [M.R. Crim. P. 41(e).] The kinds of evidence which may be suppressed and the grounds of suppression have expanded greatly since Rule 41(e) was first adopted. Although Rule 41(e) speaks of suppressing "property," that term has been expansively construed. See State v. Taylor , 438 A.2d 1279 (Me. 1982) (Rule 41(e) covers suppression of test results). However, doubts about the scope of rule 4l(e) still remain—principally whether it covers statements of a defendant ( see Taylor , 438 A.2d at 1281). The common thread which runs through all suppression situations is an inquiry into how the evidence was obtained. The issue whether the evidence was illegally obtained should typically be decided prior to trial, for the reasons canvassed in State v. Bishop, 392 A.2d 20, 22-23 (Me. 1978). The addition of a new rule 41A is designed to provide a clear basis for a motion to suppress any evidence which was arguably illegally obtained, when determination of the issue before trial may serve the same policies as those served by present Rule 41(e). As such it is a specialized case of a motion in limine (See Rule 12(c)). Rule 41(e) is contracted to provide simply for a motion for return of property.

Advisory Committee Note – 1983 [M.R. Crim. P. 41(e).] The second paragraph of Rule 41(e) is added to make clear that a Rule 41(e) motion is available in the District Court only in a prosecution for a Class D or Class E offense and only during the period that the District Court has jurisdiction over the offense. If no criminal pleading has been filed a Rule 41(e) motion should be brought in Superior Court.

Advisory Committee Note – 1996 [M.R. Crim. P. 41(c).] See Advisory Committee Note to M.R. Crim. P. 41(h). [M.R. Crim. P. 41(h).] The amendment physically moves that portion of subdivision (c) heretofore addressing the time of day authorized for the execution of a search warrant to new subdivision (h) devoted solely to that matter. Secondly, it extends the definition of daytime warrants from "7 a.m. to 7 p.m." to "7 a.m. to 9 p.m." The change is intended to minimize confusion and to more closely approximate the provisions of Federal Rule of Criminal Procedure 41(h). The change is consistent with the trend in neighboring jurisdictions. See , e.g. , N.Y. Crim. Proc. Law § 690.35 (McKinney 1995) (6:00 A.M. to 9:00 P.M.); Vt. R. Crim. P. 41(c) (6:00 A.M. to 10:00 P.M.); State v. Barron , 137 N.H. 29, 623 A.2d 216 (1993) (New Hampshire requires no special showing for nighttime execution); Commonwealth v. Grimshaw , 413 Mass. 73, 81, 595 N.E.2d 302, 307 (1992) (statutory reference in Mass. Gen. Laws Ann. ch. 276, § 2 to "daytime" and "nighttime" being undefined, SJC adopts federal rule of 6:00 A.M. to 10:00 P.M. "in keeping with current lifestyles"). [M.R. Crim. P. 41(i).] The amendment recognizes the holding of the United States Supreme Court in Wilson v. Arkansas , 514 U.S. ___, 115 S. Ct. 1914 (1995) (Decided May 22, 1995) that the common-law knock and announce principle, as applied to dwellings, forms a part of the Fourth Amendment's reasonableness inquiry and is now controlling law in Maine. In Wilson , the Court acknowledged that the knock and announce rule was not absolute. The Court noted: "This is not to say, of course, that every entry must be preceded by an announcement. The Fourth Amendment's flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests." Wilson , 115 S. Ct. 1914, 1918 (1995). The amendment recognizes the authority of a judge of the district court or justice of the peace to issue a search warrant which authorizes executing officers to refrain from knocking and announcing their purpose and office prior to execution if the judge or justice finds reasonable cause to believe that certain countervailing law enforcement interests exist. The amendment is premised upon the broad enabling language contained in 15 M.R.S. § 55 which authorized the issuance of a search warrant "in any reasonable manner . . . for any constitutional purpose." Wilson validates, and new subdivision (i) incorporates, the following circumstances allowing for the issuance of an unannounced entry search warrant: (1) Destruction of Evidence Justification : The constitutionality of dispensing with the knock and announce principle when police have reason to believe that evidence or property sought may be destroyed is well recognized. Wilson at 1919, citing Ker v. California , 374 U.S. 23, 40-41 (1963) (Plurality opinion) and People v. Maddox , 46 Cal. 2d 301, 305-306, 294 P.2d 6, 9 (1956). The reference in the amendment to "quickly or easily . . . destroyed . . . or disposed of" is adopted from Nebraska's no-knock statute, Neb. Rev. State. § 29411 (Reissued 1979), which was held constitutional in State v. Meyer , 209 Neb. 757, 311 N.W.2d 520 (1981). The terms "altered," "concealed" and "removed" are intended to have the same meaning as identical terms in Maine's Falsifying Physical Evidence crime, 17-A M.R.S. § 455(1)(A). (2) Escape Justification : Where a search warrant authorizes the search and seizure of a person pursuant to M.R. Crim. P. 41(b)(4) and officers can demonstrate that they have reasonable cause to believe that announcing their presence and purpose would aid a subject in an escape, the practice of dispensing with the announcement procedure would be recognized under the amendment as it is in case law. Wilson at 1918, citing W. Murfee, Law of Sheriffs and Other Ministerial Officers § 1163, p. 631 (1st ed. 1884) ("[A]lthough there has been some doubt on the question, the better opinion seems to be that, in cases of felony, no demand of admittance is necessary, especially as, in many cases, the delay incident to it would enable the prisoner to escape"). (3) Physical Violence Theory : The Wilson Court expressly recognized that the safety of executing officers and others may constitute a countervailing law enforcement interest justifying an unannounced execution. Wilson at 1918, citing Read v. Case , 4 Conn. 166, 170 (1822) (plaintiff who "had resolved . . . to resist even to the shedding of blood . . . was not within the reason and spirit of the rule requiring notice"); Mahomed v. The Queen , 4 Moore 239, 247, 13 Eng. Rep. 293, 296 (P.C. 1843) ("While he was firing pistols at them, were they to knock at the door, and to ask him to be pleased to open it for them? The law in its wisdom only requires this ceremony to be observed when it possibly may be attended with some advantage, and may render the breaking open of the outer door unnecessary"). The terms "deadly" and "non-deadly force" are intended to have the same meanings as set forth in 17-A M.R.S. § 2(8) and (18). (4) Countervailing Facts and Circumstances : The amendment would authorize a judge of the District Court or a justice of the peace to issue a warrant authorizing its unannounced execution if satisfied that reasonable cause exists which would otherwise render the unannounced execution of the warrant reasonable. In Wilson , the Court, recognizing the myriad of potential factual circumstances, declined to attempt to identify all justifiable exceptions to the requirement that executing officers announce their purpose and office. The Court noted: "We need not attempt a comprehensive catalog of the relevant countervailing factors here. For now, we leave to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment. We simply hold that although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry." Id . at 1919 (emphasis added). In recognizing in new subdivision (i) the authority of a judge or justice to issue an unannounced execution warrant based upon information known to officers prior to execution, no inference is intended to be generated thereby which would require officers to seek such authorization in advance or would prohibit them from executing a warrant without first announcing their presence and purpose if reasonable cause were generated after issuance, but prior to execution. Parsley v. Superior Court , 9 Cal. 3d 934, 109 Cal. Rptr. 563, 513 P.2d 611 (1973) (determination of existence of exigency justifying immediate unannounced entry must be left to executing officer subject to subsequent examination); 2 W. LaFave, Search and Seizure § 4.8(g) at 289 (1987) (majority of courts and commentators assume police are never required to present unannounced entry issue before issuing magistrate). However, where officers have sought and obtained a search warrant authorizing in advance its unannounced execution, the burden would shift to opponents of the warrant to either impeach the affidavit or otherwise demonstrate the overall unreasonableness of the search including its manner of execution. United States v. Moore , 956 F.2d 843, 850-51 (8th Cir. 1992). Finally, in recognizing by rule the authority of a judge or justice to issue an unannounced execution warrant or nighttime warrant, no inference is intended to be generated that would preclude the authority of a judge or justice to issue any other reasonable search warrant for any constitutional purpose. The identification in the rule of only two variations of a standard search warrant (nighttime and unannounced execution) is not intended to preclude a court's authority to issue other search warrants constitutionally tailored to different or unusual circumstances. See, e.g., Dalia v. United States , 441 U.S. 238, 247 (1979) (no constitutional basis for proscribing covert entry to install legal electronic bugging device); United States v. Villegas , 899 F.2d 1324 (2nd Cir. 1990) (court authorized delay of service of search warrant inventory not violative of constitution or rule); United States v. Dornhofer , 859 F.2d 1195 (4th Cir. 1988) (anticipatory search warrant permissible).

Advisory Committee Note – 1997 [ M.R. Crim. P. 41(h).] See Advisory Committee Note to M.R. Crim. P. 41(i). [M.R. Crim. P. 41(i).] The amendment deletes the verb "served" and replaces it with the verb "executed" in order to more accurately and fully describe the actions of officers authorized to conduct a search under a warrant. The term "served" is narrower in meaning than "executed," generally implying only the delivery of a copy of the search warrant upon some person, and is not wholly consistent with the provisions of subsection (i) regarding the unannounced execution of search warrants or the execution of the warrant at a residence when no person is present pursuant to subsection (d).

Advisory Committee Note – 1998 [M.R. Crim. P. 41(c).] Although not expressly stated therein, Rule 41(c) currently contemplates that a search warrant is normally issued after an ex parte application by the State and an in camera consideration by a judge or justice of the peace and that secrecy automatically continues until after execution and return. This historical practice has been recognized with approval by the United States Supreme Court as well. See Franks v. Delaware , 438 U.S. 154, 169 (1977) ("proceeding is necessarily ex parte ; since the subject of the search cannot be tipped off to the application of a warrant lest he destroy or remove evidence"). See also United States v. United States Dist. Court , 407 U.S. 297, 321 (1972) (given that warrant proceeding is not "public" government had to comply with warrant provision of the Fourth Amendment when engaging in domestic intelligence gathering activity, notwithstanding the importance of keeping domestic investigations secret). Notwithstanding the fact that the information disclosed to a judge or justice of the peace in warrant proceedings is entitled to automatic nondisclosure until after execution and return in order to protect the nature and scope of an ongoing criminal investigation, search warrant materials recently have nonetheless been made available to the public by the District Court as soon as such materials are in its possession on the mistaken belief that they are public records. This amendment to Rule 41(c) is designed to expressly recognize the historical practice and end premature disclosure by the District Court. See also Advisory

Committee Note to M.R. Crim. P. 41(f). [M.R. Crim. P. 41(f).] Search warrant materials routinely become public after execution and return. Nevertheless, the court has the inherent power to order the impoundment of warrant materials post-return and even after indictment under appropriate circumstances. See generally, Baltimore Sun Co. v. Goetz , 886 F.2d 60 (4th Cir. 1989); Times Mirror Co. v. U.S. , 873 F.2d 1210 (9th Cir. 1989). See also In re Search Warrants Issued August 29, 1994 , 889 F. Supp. 296 (D. Ohio 1995). Commonly it is the State seeking by motion an order of impoundment, although presumably it could be another, such as a defendant. See, e.g., Matter of Application and Affidavit for a Search Warrant , 923 F.2d 324 (4th Cir. 1991), cert. denied , 500 U.S. 944. This amendment to Rule 41(f) expressly recognizes the court's inherent power to impound after execution and return but leaves to developing case law what constitutes "good cause" for an order of impoundment. The amendment also precludes an open-ended impoundment order by requiring that an end point be specified, either by setting forth a fixed date or by naming a specific future event. For example, the event extinguishing the order of impoundment might be the return of an indictment or the commencement of the trial. See Advisory Committee Note to M.R. Crim. P. 41(c).

Advisory Note – June 2006 M.R. Crim. P. 41(b). The amendment replaces the term "criminal offense" with the term "crime." This reference to a variant of "offense" was overlooked when a similar reference in the subdivision was replaced with "crime" effective January 1, 2004. See Me. Rptr., 832-845 A.2d XLIV, LX.

Advisory Note – July 2010 The amendment to M.R. Crim. P. 41(e) subdivision clarifies that a party may file a motion for return of seized property in that court in which a charge related to or arising from the seizure is pending. If no charge has been filed, the motion is to be brought in the Superior Court located in the county in which the property was seized.

Advisory Note – November 2011 The amendment deletes the definition of the "property" that is subject to search and seizure, which dates from the original promulgation of the Criminal Rules in 1965. See Glassman, Maine Practice: Rules of Criminal Procedure Annotated, Rule 41(g) at 356 (1967). This definition is hopelessly outdated. It defines "property" to "include documents, books, papers and any other tangible objects." As early as 1982, the Law Court recognized that this definition was outdated, observing in State v. Taylor , 438 A.2d 1279, 1281 (Me. 1982): It is true that Rule 41(e) speaks of illegally seized "property" to be returned to the person aggrieved by the unlawful search and seizure unless otherwise subject to lawful detention. We do realize that the blood or breath samples underlying the results of their chemical analysis may not have been contemplated by the drafters of our criminal rules as returnable property within the meaning of the term "property" as defined in Rule 41(g) "to include documents, books, papers and any other tangible objects." Nevertheless, we hold that such evidence is subject to the provisions of Rule 41(e). When Rule 41A was added, effective February 1, 1983, the Advisory

Committee Note stated that the intent was "to provide a clear basis for a motion to suppress any evidence which was arguably illegally obtained." 2 Cluchey & Seitzinger, Maine Criminal Practice § 41 at VIII-54 (Gardiner ed. 1995). But the addition left undisturbed the definition of "property" in Rule 41(g), simply noting that "that term has been expansively construed." Id. A new expansive definition of "property" is now found in M.R. Crim. P. 41(k). See also Advisory Note – November 2011 to M.R. Crim. P. 41(k).

Advisory Note – November 2011 New subdivision (k) defining "property" replaces the definition of "property" formerly contained in subdivision (g). See Advisory Note – November 2011 to M.R. Crim. P. 41(g). The new definition attempts to capture the expansive definition of "property" that has developed over decades of experience. Beyond the concept of "tangible objects," "property" now encompasses electronically stored information, biological materials and the other categories listed in Rule 41(k). See also Advisory Note – November 2011 to M.R. Crim. P. 41A(a)(1) and 41B.

Advisory Note – October 2013 The amendment makes a number of nonsubstantive changes to Rule 41, all designed to enhance readability and clarity. Specifically it: (1) rearranges the order of three subdivisions within the rule – namely, subdivision (g) is redesignated subdivision (a) and its language is clarified; subdivision (k) is redesignated subdivision (d); and subdivision (e) is redesignated subdivision (j); (2) redesignates current subdivision (a) as subdivision (b) and adds the words "a Search" to its heading after the word "Issue" and before the word "Warrant"; (3) redesignates current subdivision (b) as subdivision (c) and adds the words "of a Search Warrant" in its heading after the word "Issuance"; (4) breaks up former subdivision (c) into two new subdivisions designated (e) and (f); (5) moves the special warrant provisions relating to a nighttime search and an unannounced search formerly found in subdivisions (h) and (i), respectively, into new subdivisions (f)(2)(B) and (f)(2)(C), respectively; (6) redesignates current subdivision (d) as subdivision (g); (7) redesignates current subdivision (f) as subdivision (h) and in its first sentence replaces the word "therewith" with the words "with the warrant"; and (8) redesignates subdivision (j) as subdivision (i) and adds the words "with Clerk" in the heading after the word "Notice." In addition, the amendment to Rule 41 makes the following substantive changes. First, subdivision (b) (formerly subdivision (a)) is amended to expressly provide that a search warrant may be issued by a "Superior Court justice" as well as by a District Court judge or justice of the peace "as authorized by law." Although the term "District Court Judge" where appearing in the Maine Rules of Criminal Procedure definitionally includes, among others, a justice of the Superior Court sitting in the District Court by assignment, pursuant to Rule 57(d), the added reference in subdivision (b) is useful to the reader because justices of the Superior Court commonly sit in the District Court, and because there is no statutory basis for preventing Superior Court justices from granting warrant requests. Second, a new subdivision (e) is added with the heading "Requesting a Search Warrant." It consists of three numbered paragraphs. Numbered paragraph (1) of subdivision (e) has no counterpart in current subdivision (c). It draws a distinction for purposes of obtaining a search warrant between a warrant request made in the presence of the Superior Court justice, District Court judge, or justice of the peace and a warrant request made outside the presence of the justice, judge, or justice of the peace. It provides that an inpresence application is normally required but allows for an outside-ofpresence application if, upon request of the applicant, the justice, judge, or justice of the peace "determines it reasonable under the circumstances." Numbered paragraph (2) of subdivision (e) contains the in-presence request procedure. It carries over the substance of the first unnumbered paragraph of former subdivision (c), but with two additions. First, it adds a reference to a tracking device in the context of what an affidavit must specifically designate. Second, it provides for evidence to be taken down by a court reporter or recording equipment, or recorded in a manner that is capable of producing a record adequate for purposes of review. The added language would allow the justice, judge, or justice of the peace who, for example, may be hearing evidence at home, to create a record by writing it down. As was the case in former subdivision (c), unlike Rule 41(d)(2)(B) of the Federal Rules of Criminal Procedure, a justice, judge, or justice of the peace may not wholly dispense with a written affidavit. Numbered paragraph (3) of subdivision (e) serves as a signpost identifying new Rule 41C as the rule containing the out-of-presence request procedure. Third, a new subdivision (f) is added with the heading "Issuing a Search Warrant." It consists of two numbered paragraphs. Numbered paragraph (1) of subdivision (f) carries over the substance of the second unnumbered paragraph of former subdivision (c) except that it leaves behind the former portion that required a judge or justice of the peace to issue a warrant if "satisfied that grounds for the application exist" as an apparent alternative to being satisfied "that there is probable cause to believe that they exist." Paragraph (1) also adds "except as otherwise provided in Rule 41B" relative to what must be designated in the search warrant as to "the person or place to be searched, and the person or property to be searched for." Numbered paragraph (2) of subdivision (f) contains three subparagraphs. Subparagraph (A) carries over the substance of the third and fourth unnumbered paragraphs of former subdivision (c). It adds "[e]xcept as otherwise provided in Rule 41B" relative to what it commands the officer to do. Subparagraph (B) mirrors the substance of former subdivision (h). Subparagraph (C) mirrors the substance of former subdivision (i).