CHAPTER 16-6
OTHER PROVISIONS

16-6-1 Search and Seizure.

(A)    Search Warrants. A search warrant is an order directed to any tribal or federal law enforcement officer directing the officer to search a particular place for described persons or property and if found to seize them.

(B)    A warrant shall issue only on an affidavit or affidavits sworn to before a tribal judge or magistrate and establishing grounds for issuing the warrant. If the judge or magistrate is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, they shall issue a warrant identifying the property and naming of describing the person or place to be searched. The finding of probable cause may be based on evidence either in whole or in part. Before ruling on a request for a warrant, the judgment may require the affiant to appear personally and to be examined under oath.

(C)    Service of Search Warrants. Search warrants shall, if practicable, be served by any tribal or federal law enforcement officer between the hours of 7:00 a.m. and 9:00 p.m. A copy of the warrant shall be left with an occupant or owner over sixteen years of age of the place searched if present during said search. If the place to be searched is not occupied at the time of the search, a copy of the warrant shall be left in some conspicuous place on the premises. The officer may break open any outer or inner door or window of the place to be searched, or any part of any place to be searched, or anything thereon to execute a search warrant, if after notice of the officer’s authority and purpose, the officer is denied or refused admittance, it is necessary to eliminate a restraint of the officer or a person aiding in the execution of the warrant or when the premises to be searched are unoccupied at the time of the search.

(D)    Inventory. The officer serving a search warrant shall make a signed inventory of all property seized and attached such inventory to the warrant. A copy of the inventory and search warrant shall be left with an occupant or owner over sixteen years of age if present during the search or left in a conspicuous place with the search warrant if an occupant is not present during the search.

(E)    Return of Search Warrants.

(1)    The officer shall endorse on the warrant the date, time, and place of service and the signature of the officer serving it.

(2)    The warrant shall be returned to the court with an inventory of property seized within twenty-four hours of service, Saturdays, Sundays, and legal holidays excluded.

(3)    In every case the warrant shall be returned within ten days of the date of issuance, unless return be due on a Saturday, Sunday, or legal holiday, in which case, the return shall be made on the next business day.

(F)    Property Subject To Seizure. Property which is subject to seizure is property in which there is probable cause to believe such property is:

(1)    Stolen, embezzled, contraband, or otherwise criminally possessed,

(2)    Which is or has been used to commit a criminal offense,

(3)    Property which constitutes evidence of the commission of a criminal offense.

(G)    Warrantless Searches. A law enforcement officer may conduct a search without a warrant only:

(1)    Incident to a lawful arrest,

(2)    With the consent of the person to be searched,

(3)    With the consent of the person having actual possession and control of the property to be searched,

(4)    When the officer has reasonable grounds to believe that the person searched may be armed and dangerous,

(5)    When the search is of a vehicle capable of being moved and the officer has probable cause to believe that it contains property subject to seizure, or upon inventory of such vehicle after impoundment and seizure or

(6)    In any other circumstances wherein federal law has held that a search without obtaining a warrant prior to the search in those circumstances would not be unreasonable.

(H)    A person aggrieved by an unlawful search and seizure may move the tribal court for the return of the property, not contraband, on the ground that the person is entitled to lawful possession of the property illegally seized. The judge may receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned, if not contraband, and shall not be admissible at any hearing or trial.

(I)    A law enforcement officer may stop any person in a public place whom the officer has reasonable cause to believe is in the act of committing an offense, or has committed an offense, or is attempting to commit an offense and demand from the suspect a name, address, and explanation of his or her actions. If the officer has reasonable grounds to believe his or her own safety or the safety of another nearby is endangered, the officer may conduct a frisk type search of such suspect for weapons.

(J)    The term “property” is used in this section to include documents, books, papers, and any other tangible objects.

16-6-2 Arrest.

(A)    An arrest is the taking of a person into custody in the manner authorized by law. An arrest may be made by either a police or law enforcement officer or by a private person.

(B)    A police or law enforcement officer may make an arrest in obedience to an arrest warrant, or, without a warrant, may arrest a person:

(1)    When the officer has probable cause to believe that an offense has been committed in the officer’s presence.

(2)    When the officer has probable cause for believing the person has committed an offense, although not in the officer’s presence, and there is reasonable cause for believing that such person may, before a warrant can be obtained:

(a)    flee the jurisdiction or conceal him or herself to avoid arrest,

(b)    destroy or conceal evidence of the commission of an offense, or

(c)    injure or annoy another person or damage property belonging to another person.

(C)    A private person may arrest another, for prompt delivery to a law enforcement officer:

(1)    When an offense is committed or attempted in the private person’s presence or

(2)    When an arrest warrant for the person is in fact outstanding.

(D)    Any person making an arrest may orally summon as many persons as the person deems necessary to help make the arrest.

(E)    If the offense charged is an offense punishable by banishment or in violation of the federal major crimes act, the arrest may be made at the suspect’s residence at any time of day or night. Otherwise, the arrest pursuant to a warrant should normally be made at a person’s residence between the hours of 7:00 a.m. and 9:00 p.m. Arrest at places other than at the residence may be made at any time.

(F)    Any person, upon making an arrest:

(1)    Must inform the suspect to be arrested of the intention to make the arrest of the cause or reasons for the arrest, and of the authority to make it, except when the person to be arrested is actually engaged in the commission of, or an attempt to, commit an offense, or is pursued immediately after its commission or an escape, if such is not reasonably possible under the circumstances.

(2)    Must show the warrant of arrest as soon as is practicable, if such exists and is demanded.

(3)    If a law enforcement officer, may use reasonable force and use all necessary means to effect the arrest if the person to be arrested either flees or forcibly resists after receiving information of the officer’s intent to arrest except that deadly force may be used only as otherwise provided by law.

(4)    If a law enforcement officer, may break open a door or window of a building in which the person to be arrested is, or is reasonably believed to be, after demanding admittance and explaining the purpose of which admittance is desired.

(5)    May search the person arrested and take and put into evidence all weapons the person may have.

(6)    Shall as soon as is reasonably possible, deliver the person arrested to a police officer or do as commanded by the arrest warrant or deliver the person arrested to the jail for processing of a complaint.

16-6-3 Arrest in Hot Pursuit.

(A)    Any law enforcement officer otherwise empowered to arrest a person within this jurisdiction may continuously pursue such person from a point of initial contact within the jurisdiction of the Nation to any point of arrest within or without the jurisdiction of the Nation and such arrest shall be valid, provided, that such officer shall respect and comply with the extradition requirements of the jurisdiction in which the arrest is finally made.

(B)    Any law enforcement officer commissioned by the Federal Government, any Indian Nation, or any state, when in hot and continuous pursuit of any person for the commission of a felony within such other jurisdiction may validly arrest such person within the jurisdiction of the Nation, provided, that the officer will notify and cooperate with the Tribal Police.

16-6-4 Limitation on Arrests in the Home.

A person may be arrested at the person’s own home only:

(A)    By a law enforcement officer pursuant to an arrest warrant.

(B)    By a law enforcement officer for an offense committed in the home in the presence of the officer.

(C)    By a law enforcement officer in continuous pursuit of a person who flees to the person’s home to avoid arrest.

16-6-5 Notification of Rights.

(A)    Upon arrest, the defendant shall be notified of the following rights:

(1)    The right to remain silent and that any statements made by him or her may be used against the person in court.

(2)    That the suspect has the right to obtain an attorney at his or her own expense and to have an attorney present at any questioning.

(3)    That if the suspect wishes to not answer the questions of the police, he or she may stop the questioning or request time to speak with an attorney at any point in the questioning.

(B)    Prior to conducting a consensual warrantless search, the officer shall specifically inform the person to be searched or the person in charge of the property to be searched that:

(1)    The search will be conducted only with the person’s consent.

(2)    That the person is under no obligation or requirement to consent to the search and may refuse to consent to the search if the person chooses to do so, or request the advice of an attorney at his or her own expense prior to responding to the requested consent to the search.

(3)    That if the person refuses to consent to the search, the officer will not search the person or property without first obtaining a warrant from the courts.

(C)    Whenever possible, the officer should obtain a written statement that the person knows these rights, understands, and waives them prior to taking a voluntary statement from a suspect or conducting a warrantless consensual search, provided that the absence of such a written statement does not preclude the admission of the statement or other evidence if the court determines that the statement or consent to search were voluntary.

16-6-6 Executive Order for Relief from Judgment.

(Deleted by PBP TC No. 99-68, May 12, 1999)