Rule 37. Search and Seizure

(a) Search Warrant Issuance and Contents. (1) A search warrant authorized by law shall issue only on affidavit sworn to before a judge or magistrate judge or any person authorized to take oaths under the law of the state, or sworn testimony taken on the record and establishing the grounds for issuing the warrant. (2) If the judge or magistrate judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, the judge or magistrate judge shall issue a warrant identifying the property and naming or describing the person or place to be searched. (3) The warrant shall be directed to a peace officer of the state authorized to enforce or assist in enforcing any law thereof; and (A) shall state the ground or probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof; and (B) shall command the officer to search the person or place named for the property specified within a reasonable period not to exceed 30 days of the issuance of the warrant; and (C) shall direct that it be served between 7:00 a.m. and 10:00 p.m., unless the issuing authority by appropriate provision in the warrant, and for reasonable cause shown, authorizes its execution at other than this time; and (D) shall designate the court, judge, or magistrate judge to whom it shall be returned. (b) Execution and Return with Inventory. The warrant shall be executed and returned within 30 days after its date of issuance. However, upon sworn application made before the expiration of the initial 30 day period or any subsequent extension, the court may for good cause extend the execution period for a reasonable time not to exceed 30 days. Good cause includes protecting the confidentiality of an ongoing investiga- tion and protecting a person working with law enforcement authorities on an investigation. The officer taking property under the warrant (1) shall give to the person from whom or from whose premises the property was taken a copy of the warrant, a copy of the supporting affidavits, and receipt for the property taken, or (2) shall leave the copies and the 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 as a result of the search pursuant to or in conjunction with the warrant. 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 signed by the officer under the penalty of perjury pursuant to AS 09.63.020 or sworn to in front of a judge or magistrate judge, or a notary public. The judge, magistrate judge, or the court to which the return is made 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. (c) Motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the court in the judicial district in which the property was seized or the court in which the property may be used for the return of the property and to suppress for use as evidence anything so obtained on the ground that the property was illegally seized. (d) In Camera Hearing. A person who challenges the validity of a search and seizure predicated on information gained from an informant used either in (1) support of an application for a warrant, or (2) as the basis of a search without warrant may move the court for disclosure of the identity of the informant pursuant to Rule 16. In the event the court determines that disclosure of the identity of the informant is not required under Rule 16, the court shall conduct an in camera recorded hearing in which it shall investigate and take evidence so as to determine whether or not a search based on the informant’s information was justified. Following the in camera hearing, the court shall grant or deny the motion to suppress on the record, and shall make written findings concerning the validity of the search based on the informer’s information. The written findings, together with the record of the hearing, shall be sealed, and if the validity of the search is upheld the sealed testimony and findings shall, on appeal of a conviction in which evidence of the search was admitted, be transmitted to the court of appeals and the supreme court for automatic review of the motion to suppress. (e) Access to Warrant Information. (1) When Records Are Sealed. The record of proceedings under this rule and all documents related to those proceedings, including search warrants, affidavits, receipts and inventories, must be kept sealed until (A) the warrant is identified in a charting document or in a notice filed by the prosecutor under paragraph (2), (B) the record is ordered unsealed by the court, or (C) four years have elapsed since the issuance of the warrant. The court may order prior release of these documents for good cause shown. (2) When Records are Public. After the warrant is identified in a charging document or in a notice filed by the prosecutor, the record of proceedings and all related documents shall be open to public inspection unless the court, for good cause shown, orders that the documents remain sealed for a further period. The initial charging document in all prosecutions must be accompanied by a listing of the numbers of all warrants issued in relation to the case unless the court waives this requirement for good cause shown. The prosecutor shall file notice of subsequent warrants issued in relation to the case once executed. (3) When Records Are Confidential. If four years have elapsed since the issuance of the warrant and no charges related to the warrant have been filed, the record of proceedings and all related documents shall be unsealed and shall thereafter be deemed “confidential” as defined in the Administrative Rules and Bulletins. For good cause shown, the court may delay the unsealing. (4) Protection of Victim and Witness Information. The court will provide access to the record of proceedings and related documents to defense counsel upon request. In accordance with AS 12.61.120(a), defense counsel shall not disclose the address and telephone number of a victim or witness to the defendant. If the defendant is proceeding without counsel and requests access to the records, the court shall protect the address and telephone number of a victim or witness as provided in AS 12.61.120(b). Note: The Administrative Bulletin defining “confidential” and “sealed” is Administrative Bulletin No. 48, Standard 6. The definitions are also set out in Administrative Rule 37.5(c)(4) and (5). Administrative Bulletin 53, Section IV, discusses how information made confidential by the Victims’ Rights Act is protected after the search warrants are no longer confidential under this rule. Note: Ch. 75 SLA 2002 (HB 106), Section 4, adds a new section to AS 06.01 relating to the confidentiality of depositor and customer records at banking and other financial institutions. According to Section 56 of the Act, AS 06.01.028(b) has the effect of changing Civil Rule 45, Criminal Rules 17 and 37, and Alaska Bar Rule 24 by requiring certain court orders compelling disclosure of records to provide for reimbursement of a financial institution’s reasonable costs of complying with the order. Notes (effective nunc pro tunc to July 1, 2008): Chapter 75, section 41, SLA 2008 (SB 265), effective July 1, 2008, amended Criminal Rule 37(b) relating to the execution of search warrants, as reflected in section 1 of this Order. The changes to Criminal Rule 37(b) are adopted for the sole reason that the legislature has mandated the amendments. Editor’s Note: Section 43, Chapter 143, Session Laws of Alaska 1982, provides that “AS 12.35.015, added by sec. 18 of this Act [Chapter 143, Session Laws of Alaska 1982], has the effect of changing Rule 37, Rules of Criminal Procedure, by allowing search warrants to be issued upon sworn oral testimony communicated by telephone or other appropriate means.” Cross References Rule 38.2. Videoconference Appearance by Defendant. 65 (a) CROSS REFERENCE: AS 12.35.010; AS 12.35.020 (b) CROSS REFERENCE: AS 12.36 PART IX. GENERAL PROVISIONS