Rule 41 Search and Seizure

(a) Scope and Definitions.

(1) This rule does not modify 5 V.I.C. § 3902 or any other statute regulating search or seizure, or the issuance and execution of a search warrant in special circumstances.

(2) A search warrant authorized by this rule may be issued by a judge, who must issue the warrant to an officer authorized to execute it.

(3) Definitions. The term “property” as used in this rule includes documents, books, papers, any other tangible objects, and information. "Daytime" means the hours between 6:00 a.m. and 10:00 p.m. according to local time. “Judge” as used in this Rule 41 means any judicial officer authorized to act under Virgin Islands law. "Tracking device" means an electronic or mechanical device which permits the tracking of the movement of a person or object.

(b) Venue [Reserved]

(c) Persons or Property Subject to Search or Seizure. A warrant may be issued for any of the following:

(1) evidence of a crime;

(2) contraband, fruits of crime, or other items illegally possessed;

(3) property designed for use, intended for use, or used in committing a crime; or

(4) a person to be arrested or a person who is unlawfully restrained.

(d) Obtaining a Warrant.

(1) Probable Cause. Upon application of a law enforcement officer or attorney for the government, a judge shall issue a search warrant if there is probable cause to search for and seize a person or property or to install and use a tracking device. The finding of probable cause may be based upon hearsay evidence in whole or in part.

(2) Requesting a Warrant in the Presence of a Judge.

(A) Warrant on an Affidavit. When a law enforcement officer or an attorney for the government presents an affidavit in support of a warrant, the judge may require the affiant to appear personally and may examine under oath the affiant and any witness the affiant produces. The applicant may submit depositions or affidavits of other persons containing allegations of fact supporting or tending to support those contained in the application.

(B) Warrant on Sworn Testimony. The judge may wholly or partially dispense with a written affidavit and base a warrant on sworn testimony if doing so is reasonable under the circumstances.

(C) Recording Testimony. Testimony taken in support of a warrant must be recorded by a court reporter or by a suitable recording device, and the judge must file the transcript or recording with the clerk, along with any affidavit.

(3) Requesting a Warrant by Telephonic or Other Means. In accordance with Rule 4.1, a judge may issue a warrant based on information communicated by telephone or other reliable electronic means.

(e) Contents of the Warrant; Duplicates; Modification; Signing.

(1) Warrant to Search for and Seize a Person or Property. Except for a tracking-device warrant, the warrant must identify the person or property to be searched, identify any person or property to be seized, and designate the judge to whom it must be returned. The warrant must command the officer to:

(A) execute the warrant within a specified time no longer than 14 days; and

(B) execute the warrant during the daytime, unless the judge for good cause expressly authorizes execution at another time.

(2) Warrant Seeking Electronically Stored Information. A warrant under Rule 41(e)(2)(A) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.

(3) Authorization to Intercept Wire or Oral Communications. A judge may grant—in conformity with the standards and procedures set forth in Chapter 343 of Title 5 of the Virgin Islands Code, 5 V.I.C. § 4102 et seq., an order authorizing or approving the interception of wire or oral communications.

(4) Warrant for a Tracking Device. A tracking-device warrant must identify the person or property to be tracked, designate the judge to whom it must be returned, and specify a reasonable length of time that the device may be used. The time must not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each. The warrant must command the officer to:

(A) complete any installation authorized by the warrant within a specified time no longer than 10 days;

(B) perform any installation authorized by the warrant during the daytime, unless the judge for good cause expressly authorizes installation at another time; and

(C) return the warrant to the judge designated in the warrant.

(5) Warrant by Telephonic or Other Means. If a judge decides to proceed under Rule 41(d)(3), the following additional procedures apply:

(A) Preparing a Proposed Duplicate Original Warrant. The applicant must prepare a "proposed duplicate original warrant" and must read or otherwise transmit the contents of that document verbatim to the judge.

(B) Preparing an Original Warrant. If the applicant reads the contents of the proposed duplicate original warrant, the judge must enter those contents into an original warrant. If the applicant transmits the contents by reliable electronic means, that transmission may serve as the original warrant.

(C) Modification. The judge may modify the original warrant. The judge must transmit any modified warrant to the applicant by reliable electronic means under Rule 41(e)(3)(D) or direct the applicant to modify the proposed duplicate original warrant accordingly.

(D) Signing the Warrant. Upon determining to issue the warrant, the judge must immediately sign the original warrant, enter on its face the exact date and time it is issued, and transmit it by reliable electronic means to the applicant or direct the applicant to sign the judge's name on the duplicate original warrant.

(f) Executing and Returning the Warrant.

(1) Warrant to Search for and Seize a Person or Property.

(A) Time and Place of Execution. The officer executing the warrant must enter on it the exact date and time it was executed. A search warrant must not be executed more than 10 days after the date of issuance. A search warrant may be executed on any day of the week and, in the absence of express authorization in the warrant, must be executed only during hours of daylight. A search warrant may be executed anywhere within the Virgin Islands. (A-1) Breaking doors. As provided in 5 V.I.C. § 3904, the officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of the officer's authority and purpose, admittance is refused, or when necessary to liberate the officer or a person aiding him in the execution of the warrant.

(B) Inventory. An officer present during the execution of the warrant must prepare and verify an inventory of any property seized. The officer must do so in the presence of another officer and the person from whom, or from whose premises, the property was taken. If either one is not present, the officer must prepare and verify the inventory in the presence of at least one other credible person. In a case involving the seizure of electronic storage media or the seizure or copying of electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied. The officer may retain a copy of the electronically stored information that was seized or copied.

(C) Receipt. The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property. For a warrant to use remote access to search electronic storage media and seize or copy electronically stored information, the officer must make reasonable efforts to serve a copy of the warrant and receipt on the person whose property was searched or who possessed the information that was seized or copied. Service may be accomplished by any means, including electronic means, reasonably calculated to reach that person.

(D) Return. The officer executing the warrant must promptly return it--together with a copy of the inventory--to the judge designated on the warrant. The officer may do so by reliable electronic means. The judge must, on request, give 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. Disposition of property seized shall conform to 5 V.I.C. § 3905.

(2) Warrant for a Tracking Device.

(A) Noting the Time. The officer executing a tracking-device warrant must enter on it the exact date and time the device was installed and the period during which it was used.

(B) Return. Within 10 days after the use of the tracking device has ended, the officer executing the warrant must return it to the judge designated in the warrant. The officer may do so by reliable electronic means.

(C) Service. Within 10 days after the use of the tracking device has ended, the officer executing a tracking-device warrant must serve a copy of the warrant on the person who was tracked or whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked; or by leaving a copy at the person's residence or usual place of abode with an individual of suitable age and discretion who resides at that location and by mailing a copy to the person's last known address. Upon request of the government, the judge may delay notice as provided in Rule 41(f)(3).

(3) Delayed Notice. Upon the government's request, a judge may delay any notice required by this rule if the delay is authorized by statute.

(4) Return. The officer executing the warrant must promptly return it--together with a copy of the inventory--to the judge designated on the warrant. The judge must, on request, give 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.

(g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the division where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. While a criminal investigation or proceeding remains pending, the burden rests upon the movant to show entitlement to return of the property, but at the conclusion of a criminal proceeding the evidentiary burden on a Rule 41(g) motion shifts to the government to demonstrate that it has a continuing legitimate reason to retain the seized property. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

(h) Motion to Suppress. A defendant may move to suppress evidence in the court where the trial will occur, as Rule 12 provides.

(i) Forwarding Papers to the Clerk. The judge to whom the warrant is returned must attach to the warrant a copy of the return, of the inventory, and of all other related papers and must deliver them to the clerk in the district where the property was seized. Effective December 1, 2017 (Promulgation Order 2017-010)