Md. Admin. Order of 2021-04-14 (the Implementation of Electronic Search Warrants)

IN THE COURT OF APPEALS OF MARYLAND

SECOND AMENDED ADMINISTRATIVE ORDER ON

THE IMPLEMENTATION OF

ELECTRONIC SEARCH WARRANTS

WHEREAS, The Administrative Order on the Implementation of Elect ronic Search

Warrants having been issued on June 26, 2015, to facilitate the implementation of amendments to

Maryland Rule 4-601 to reflect statutory amendments authorizing the electronic submission of

applications for search warrants, the electronic is suance of search warrants, and the electronic

submission of search warrant returns; and

WHEREAS, Maryland Rule 4-601 requires the State Cou rt Administrator to specify the

electronic text format for the submission of search warrant documents and search warrant returns

from law enforcement officers; and

WHEREAS, the State Court Administrator previously h aving specified the secured PDF

as the electronic text format for submission of ele ctronic search warrant documents and search

warrant returns by law enforcement officers; and

WHEREAS, The Court Technology Committee of the Judicial Council (Court Technology

Committee) having proposed, in 2015, a uniform proc edure to the Judicial Council that would

assist judges in ensuring that they maintain an acc eptable level of security when receiving and

approving search warrants through the electronic medium and that uniform procedure having been

accepted by the Judicial Council and the Chief Judge of the Court of Appeals, who appended it to

the Administrative Order on the Implementation of Elect ronic Search Warrants, issued June 26,

2015; and

WHEREAS, The Court Technology Committee having undertaken a review of electronic

text formats, given the passage of time and advance s in other secured electronic formats, and

concluded the transmission of search warrant documents and search warrant returns in a Microsoft

WORD document to be as secure as PDF format transmissions when transmitted from an official

law enforcement domain with the required security c ertification and when the document and

transaction details are preserved upon signing using Adobe Sign or DocuSign software; and

WHEREAS, The Court Technology Committee having prep ared an amended report

recommending that the additional text format be con sidered for use, consistent with the report’s

recommended electronic warrant and return procedures, and its chair having presented the report

to the Judicial Council on June 11, 2020; and

WHEREAS, The Judicial Council, previously having expressed the need for standards of

security related to the processing of electronic se arch warrants, having adopted the

recommendations in the Court Technology Committee’s amended report; and

WHEREAS, The State Court Administrator further having informed the Chief Judge of the

Court of Appeals that she is specifying, consistent with Maryland Rule 4-601, Microsoft WORD

documents as one of the electronic text formats that may be utilized, in tandem with the requisite

transmission security and preservation upon signing as recommended by the Court Technology

Committee in its amended report; and

WHEREAS, An Amended Administrative Order on the Implementation of Electronic

Search Warrants having been issued on June 17, 2020, to reflect such requirements; and

WHEREAS, The Court Technology Committee having reco mmended that the First

Amended Court Technology Committee Report to Judicial Council Regarding Electronic Search

Warrant Procedure be amended to include an additional requirement that does not require a policy

consideration by the Judicial Council,

NOW, THEREFORE, I, Mary Ellen Barbera, Chief Judge of the Court of Appeals and

administrative head of the Judicial Branch, pursuant to the authority conferred by Article IV, § 18

do hereby order this 14th day of April 2021, that

1. The First Amended Court Technology Committee Report to Judicial Council

Regarding Electronic Search Warrant and Search Warr ant Return Procedure

henceforth shall be, and hereby is, referred to as the Report on Electronic Search

Warrant and Warrant Return Procedure, effective Apr il 14, 2021, until such time

that it is further updated, and is appended to this Order as an exhibit; and

2. The first sentence of Paragraph Nine (9.) of the Re port on Electronic Search

Warrant and Warrant Return Procedure shall be, and hereby is, amended to read as

follows: “If the judge approves the warrant, the ju dge, using a digital signature

program supplied by the Judiciary, shall sign and d ate the warrant, including the

time of the issuance, and affix the Maryland Judiciary Seal.”; and

3. The administrative judges in the respective Circuit and District Courts in each

jurisdiction shall meet to revise, if necessary, th eir adopted protocols for the

implementation of electronic search warrants, giving consideration to the amended

procedures for the appropriate security standards f or the receipt and issuance of

electronic search warrant documents; and

4. Established protocols that provide for the use of e lectronic mail as a means for

transmission of search warrant documents shall cont inue to require a written

certification from the law enforcement agency indic ating that the domain from

which the documents are sent is secured by a Secure Sockets Layer (SSL)

certificate; and

5. Any established protocols that provide for transmis sion via fax shall continue to

require all search warrant documents to be sent fro m a fax machine controlled by

the law enforcement agency directly to the judge’s fax machine or to a fax machine

that, for the purposes of receiving and sending doc uments related to the search

warrant, is controlled by the judge; and

6. Administrative judges shall adopt the secured PDF or Microsoft WORD document

or any other format that the State Court Administra tor may from time to time

approve as the electronic text format for search wa rrant documents and search

warrant returns as designated by the State Court Administrator pursuant to Rule 4-

601; and

7. The Amended Administrative Order on the Implementation of Electronic Search

Warrants, filed June 17, 2020, shall be and hereby is rescinded effective

immediately.

/s/ Mary Ellen Barbera

Mary Ellen Barbera

Chief Judge

Court of Appeals of Maryland

Filed: April 14, 2021 Pursuant to Maryland Uniform Electronic Legal

Materials Act

(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2021-04-14

/s/ Suzanne C. Johnson 11:22-04:00

Suzanne C. Johnson

Clerk

Court of Appeals of Maryland Suzanne C. Johnson, Clerk

p. 1

Report on

Electronic Search Warrant and

Warrant Return Procedure, effective April 14, 2021

Introductory notes:

 Of the two authorized electronic methods, secure a nd reliable electronic mail and

by secure facsimile (fax), fax is the least favored. Fax transmission presents issues

of security and secrecy. Fax machines are frequently placed in common areas and

are accessible to persons other than the intended recipient. Before accepting any

electronic search warrant, by fax or e-mail, the ju dge should take whatever steps

he or she deems necessary to ensure that the security and secrecy of the warrant

process is preserved. In the case of fax, this may include insuring that the recipient

is physically present at the fax machine at the time of the transmission.

 The issuing judge is ultimately responsible for co mpliance with the governing rules.

Recommended Electronic Warrant and Return Procedures

1. Absent a County or District protocol to the contrary, the law enforcement officer should

contact the judge prior to transmitting the search warrant and supporting documents or

search warrant return to determine whether the judg e is amenable to receiving an

electronic search warrant or return application by secure fax or secure electronic mail.

2. The judge must take such steps as he or she deems necessary to verify the identity of

the officer. If the judge is not comfortable with t he identity of the officer or the officer’s

ability to deliver the warrant and related papers or return by secure fax or e-mail, the judge

should require the warrant and related papers to be delivered in person.

3. To ensure the secrecy and security of electronic process, it is essential that the

means of transmission be to and from the following:

a. In the case of e-mail, the e-mail must be sent f rom an official law enforcement

domain that has a Secure Sockets Layer (SSL) certificate.

p. 2

The law enforcement agency should be required to provide a written certification

that it complies with this requirement before warra nts or returns are accepted

from the agency. The law enforcement officer must u se the secure agency e-mail account. The law enforcement officer must send the e-mail to the judge's

secure judiciary e-mail account. The judge must return the warrant or return to

the law enforcement officer’s secure agency email a ddress via the judge’s

secure judiciary e-mail account or a secure e-mail client contained within the

program provided by the Judiciary for applying the electronic signature. At the

time that this report is submitted, either Adobe Si gn or DocuSign, contained

within Microsoft Outlook, is the Judiciary’s approv ed method for applying the

judge’s signature and returning the application, affidavit and warrant or return to

the law enforcement official.

b. In the case of fax transmission, the law enforce ment officer must send the

warrant and related papers or return from a fax mac hine controlled by the law

enforcement official's agency to the judge's person al fax machine or a fax

machine controlled by the judiciary. The parties should arrange for the recipient

to be present at the fax machine to receive the transmission personally.

4. If the warrant and related papers or return are sent by e-mail, the complete text of the

application, affidavit and search warrant or return shall be sent in a format approved by

the State Court Administrator. At the time that thi s report is submitted, the approved

formats are either a PDF file or a Microsoft Word document. The application, affidavit and

search warrant must be in one file/document.

5. If a warrant or return are submitted by facsimil e, the signed application, supporting

affidavit, and the proposed search warrant or return must be sent to the judge in triplicate.

6. The affidavit or return must be signed and dated prior to transmission to the judge. If

not signed, it can be signed and re-submitted by th e affiant. The application must be

affirmed under the penalties of perjury to be true and set forth a declaration that the facts

contained within are based on the personal knowledg e of the affiant and that there is

probable cause pursuant to Criminal Procedure §1-203 and Maryland Rule 1-202. There

is no requirement that the law enforcement official swear a verbal oath.

p. 3

7. The judge may discuss the search warrant with the applicant in person, by telephone,

video conferencing, or other electronic means. The discussion between the applicant and

the judge may be explanatory in nature but may not be for the purpose of adding or

changing any statement in the affidavit. Any facts that are not contained within the “four

corners” of the warrant should not be considered.

8. The judge should review the warrant and make cha nges, if any, by strike-throughs or

insertions of text into the warrant.

9. If the judge approves the warrant, the judge, using a digital signature program supplied

by the Judiciary, shall sign and date the warrant, including the time of the issuance, and

affix the Maryland Judiciary Seal. At the time that this report is submitted, either Adobe

Sign or DocuSign are the approved applications for judges to sign warrants and returns.

Once the warrant is signed, either Adobe Sign or Do cuSign will “flatten” the document,

meaning that it will not be able to be altered furt her. DocuSign will prompt the judge to

facilitate the transmission of the signed warrant a nd supporting documents or return to

the law enforcement official’s secure email address.

10. The judge must retain a printed copy of the application, affidavit and warrant until the

warrant is returned, executed or unexecuted.

11. The officer shall file a return of the search w arrant to the judge as required by

Maryland Rule 4-601(f). Delivery of the return, warrant, and verified inventory may be in

person, by secure facsimile, or by secure electroni c mail that permits the judge to print

the complete text of the documents. The printed signed and dated warrant and the printed

inventory report and return shall be filed with the clerk of the court.