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Rule 7 No tribal law enforcement officer shall conduct any search without a valid warrant except: Incident to making a lawful arrest, in which case the search shall be limited to the individual arrested and the immediate surroundings within his or her reach; or With the voluntary consent of the person being searched, or of the owner or occupant of the place to be searched; or When the search is incident to an arrest and seizure of contraband, and such search is for the purpose of taking an inventory of the item s in order to protect the property of the person or owner, and to account for all item s which have been seized; or Any other search which does not violate the constitutional rights of an individual, and has been found to be reasonable under the particular facts and circumstances of the situation by the Pascua Yaqui Tribal Courts and the Supreme Court of the United States.
Rule 8 Any tribal law enforcement agency, an officer of which seizes property by warrant or otherwise, shall make an inventory of all property seized, and a copy of such inventory shall be given to the person from whom the property was taken.
After the entry of a judgment finally disposing of a case, a hearing shall be held by the Tribal Court to determine the disposition of all property seized by any tribal law enforcement agency in connection with that case.
Upon satisfactory proof of ownership, the property shall be delivered to the owner unless such property is contraband or is to be used as evidence in a pending case. Property taken as evidence, other than contraband, shall be returned to the owner after final judgment. Property confiscated as contraband shall become the property of the tribe and may be either destroyed, sold at public auction, retained for the benefit of the tribe, or otherwise lawfully disposed of as ordered by the court.
Rule 9 All criminal prosecutions for violation of the Pascua Yaqui Tribe Criminal Code shall be initiated by the filing of a complaint in the Tribal Court. A complaint is a written statement of the essential facts constituting an offense, signed by a law enforcement officer or a prosecutor, or made upon oath before a judge, and charging that a named individual has committed a particular criminal offense.
Complaints shall contain: A written statement, describing in ordinary language the offense committed, including the time and place as nearly as may be determined, and the name or description of the person alleged to have committed the offense; and The section of the Tribal Code allegedly violated.
The chief prosecutor, deputy prosecutor, or lay advocates under the supervision of the Chief Prosecutor or Deputy Prosecutor shall file all criminal complaints with the Tribal Court based upon information received from the investigating law enforcement officer or a complaining witness. The filer may have the officer or witness verify the written complaint by signing an affidavit or other signed statement to be attached to the complaint.
If the complaint, or the complaint together with other signed statements, is sufficient to establish probable cause to believe that a crime has been committed by the person charged, the court shall issue a summons commanding the accused to appear before the court at a specified time and place to answer to the charge.
The judge before whom the complaint is filed may, without unnecessary delay, subpoena and examine such witnesses as he or she deems necessary to the determination of whether or not a warrant or summons should be issued. When an accused has been arrested without a warrant, a complaint or a complaint together with other sworn statements, shall be filed with the court for review as to whether probable cause exists to hold the accused, and in all cases, a complaint shall be filed no later than at the time of arraignment, otherwise the defendant shall be released without prejudice to the subsequent filing of a criminal complaint.
Rule 10 Arrest is the taking of a person into custody in order that he or she may be held to answer for a criminal offense. No tribal law enforcement officer shall arrest any person for a criminal offense set out in the Tribal Code except when: The officer has a warrant signed by a tribal judge commanding the arrest of such person, or the officer knows for a certainty that such a warrant has been issued; or The offense occurred in the presence of the arresting officer; or The officer has probable cause to believe that the person to be arrested has committed an offense.
Any enforcement officer having authority to make an arrest may, and in the case where a reasonable person has reason to believe that life or limb is in danger, break open an outer or inner door or window of a dwelling house or other structure for the purpose of making the arrest if, after a notice of his intention, he is not allowed admittance within a reasonable time.
Rule 11 Every judge of the Tribal Court may issue warrants to arrest; provided, however, that such warrants shall be issued only upon a showing of probable cause in sworn written statements containing reliable information. No tribal judge shall issue an arrest warrant if he or she finds that there is not probable cause to believe that the offense charged has been committed by the named accused. A summons shall be in the same form as a warrant except that it shall summon the defendant to appear at a stated time and place within seven days of the date of service.
At the request of the prosecutor the summons shall command the defendant to report to a designated place to be photographed and fingerprinted prior to his or her appearance in response to the summons. A list of warrants shall be prepared daily and any served or quashed warrants shall be struck from the warrant list daily.
Rule 12 The warrant shall be directed to, and may be executed by, any tribal law enforcement officer. A warrant shall be executed by arrest of the defendant. The officer need not have the warrant in his or her possession at the time of the arrest, but upon request shall show the warrant to the defendant as soon as possible. If the officer does not have the warrant in his or her possession at the time of the arrest, he or she shall inform the defendant of the offense charged and of the fact that a warrant has been issued.
Rule 13 The summons may be served in the same manner as the summons in a civil action, except that service may not be by publication. A summons may be served by certified or registered mail, return receipt requested.
Return of the receipt shall be prima facie evidence of service. Rule 14 A warrant of arrest shall not be invalidated, nor shall any person in custody thereon by discharged, because of a defect in form. The warrant may be amended by any tribal judge to remedy such defect. Rule 15 A suspect who is under arrest shall be advised of the following rights prior to being questioned: That he or she has the right to remain silent; and That any statements made by the suspect may be used against him or her in court; and That the suspect has the right to counsel, and to have counsel present during all questioning, and that legal counsel will be provided at no cost if the court finds that he or she does not have the financial ability to pay for counsel.
The suspect, as a condition to the issuance of such a notice to appear in lieu of arrest, shall be required to sign a promise that he or she will appear at the stated time and place.
The promise to appear shall contain a warning that a person who signs the promise and fails to appear as promised is guilty of a misdemeanor and subject to arrest. Any person who signs such a promise and fails to appear may be prosecuted for the separate offense of failure to appear. The notice to appear shall contain the same information as a warrant, except that it may be signed by a law enforcement officer, instead of a judge. If a defendant fails to appear in response to a notice to appear, a warrant for his or her arrest shall be issued.
Rule 17 A person arrested shall be taken before a tribal judge without unnecessary delay. If he or she is not brought before a tribal judge within 24 hours after arrest, the defendant shall immediately be released. A person arrested shall be taken for an initial appearance before the tribal judge who issued the arrest warrant, if the arrest was with a warrant, or, if the issuing judge is unavailable, or if the arrest was without a warrant, before the first available tribal judge.
If a complaint is not filed within 48 hours from the time of the initial appearance before the judge, or by the time of the arraignment, whichever is later, the defendant shall be released from jail without prejudice to the subsequent filing of a criminal complaint. The chief judge shall take such steps as are necessary to assure that a tribal judge is available every day of the week for initial appearances as required by Subsection A above. Rule 18 At the initial appearance of any person who was arrested without a warrant and against whom no verified complaints have been filed, the court shall, after informing the accused of his or her rights, as outlined below, first determine whether or not probable cause exists to continue to detain and prosecute the accused, and if not, shall order the accused released from custody immediately.
Rule Notwithstanding the requirements in other provisions in this Chapter, the courts may use two-way interactive video technology to conduct the following proceedings between a courtroom and a defendant located at a prison, jail, or other location: Initial hearings on the warrant or complaint; Arraignments, pretrial conferences, pleas, show cause hearings, waivers and adjournments of extradition; Referrals for forensic determination of competency; or Waivers and adjournments of preliminary examinations.
As long as the defendant is either present in the courtroom or has waived the right to be present, on motion of either party, the courts may use telephonic, voice, or video conferencing, including two-way interactive video technology, to take testimony from an expert witness or, upon a showing of good cause, any person at another location in a preliminary examination. As long as the defendant is either present in the courtroom or has waived the right to be present, upon a showing of good cause, courts may use two-way interactive video technology to take testimony from a person at another location in the following proceedings: Evidentiary hearings, competency hearings, sentencings, probation revocation proceedings, and proceedings to revoke a sentence that does not entail an adjudication of guilt; With the consent of the parties, trials.
A party who does not consent to the use of two- way interactive video technology to take testimony from a person at trial shall not be required to articulate any reason for not consenting. Rule 19 Every defendant shall be released pending and during trial on his or her own recognizance, unless the court determines, based upon findings of fact made at the initial appearance, or a later hearing to modify the conditions of release, that such release will not reasonably assure his or her appearance for all future hearings.
No defendant shall be held without bail unless the court determines, based upon findings of fact made at the initial appearance, or a later hearing to modify the conditions of release, that there is a grave risk that the defendant, while released, will commit a crime. Every person entitled to release under the terms of this section shall be entitled to release from custody pending and during trial under whichever one or more of the following conditions is deemed by the judge to be the least restrictive alternative which will reasonably assure the appearance of the person at any lawfully required hearing: Release on personal recognizance upon signing by the accused of a written promise to appear at trial and all other lawfully required times.
Release with reasonable restrictions on the travel, association, or place of residence of the accused during the period of release. Release after deposit by the accused or a bondsman of bond in either cash or other sufficient collateral in an amount specified by the judge.
The judge, in his or her discretion, may require that the accused post only a portion of the total bond, the full sum to become due if the accused fails to appear as ordered. Release after execution of a bail agreement by two responsible members of the community. Release upon any other condition deemed by the judge to be reasonably necessary to assure the appearance of the accused as required.
Rule 20 At the initial appearance before a judge, a determination of the conditions of release shall be made. The defendant shall have the opportunity to be heard by the court with respect to the conditions of release. The court shall issue an order containing the conditions of release and shall inform the accused of the conditions, the possible consequences of their violation, and that a warrant for his or her arrest may be issued immediately upon report of a violation.
Rule 21 Any person remaining in custody may move for reexamination of the conditions of release based upon the existence of material facts not previously presented to the court. The court may, on its own initiative, at any time modify the conditions of release, after giving the parties an opportunity to respond to the proposed modification. A copy of the petition shall be served with the warrant or summons.
If after a hearing on the matters set forth in the petition, the court finds that the person released has not complied with the conditions of release, the court may modify the conditions or revoke release. Rule 22 Forfeiture: If at any time it appears to the court that a condition of an appearance bond has been violated, it shall require the parties and any surety to show cause why the bond should not be forfeited, setting a hearing thereon within ten days. If at the hearing the violation is not explained or excused, the court may enter an appropriate order of judgment forfeiting all or part of the amount of the bond, which shall be enforceable by the prosecutor as any civil judgment.
Exoneration: At any time that the court finds that there is no further need for an appearance bond, it shall exonerate the appearance bond and order the return of any security deposited.
Rule 23 Arraignment shall be held in open court with the defendant present, and, unless time is waived by the defendant with the concurrence of the court, shall take place within ten days after the initial appearance. Hear and decide motions concerning the conditions of release. Set the date of trial. Advise the parties in writing of the dates set for further proceedings and other important deadlines.
Rule 26 A plea of guilty or no contest shall be accepted only when made by the defendant personally in open court. A plea of guilty may be accepted only if voluntarily and intelligently made. Before accepting a plea of guilty or no contest, the court shall address the defendant personally in open court, informing the defendant of, and determining that he or she understands: The nature of the charge to which the plea is offered.
The nature and rage of possible sentences for the offense to which the plea is offered. Before accepting a plea of guilty or no contest, the court shall address the defendant personally in open court and determine that there is a factual basis for the plea, that the defendant wishes to give up the rights of which he or she has been advised, and that the plea is voluntary and not the result of force, threats, or promises other than a plea agreement.
A plea of no contest may be accepted only after due considerations of the views of the parties and the interest of the public in the effective administration of justice. Rule 27 The prosecutor and the defendant may negotiate concerning, and reach an agreement on, any aspect of the disposition of the case. The terms of a plea agreement shall be in writing and shall be signed by the defendant, his or her counsel, if any, and the prosecutor.
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