THE COURTS
Title 234--RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CH. 500 ]
Proposed Amendments to Pa.R.Crim.P. 513
[37 Pa.B. 6392]
[Saturday, December 8, 2007]The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rule 513 to provide for (1) the temporary delay in the dissemination and (2) temporary sealing of arrest warrant information to the public prior to execution. This Supplemental Report resulted from the Committee's review of the correspondence received after publication of our original explanatory Report that explained the Committee's proposal for procedures for delay in dissemination of arrest warrant information only. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Supplemental Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Supplemental Report should not be confused with the official Committee Comments to the rules. Also, note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.
The text of the proposed amendments to Rule 513 precedes the Report. Additions are shown in bold and are underlined; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,
Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 100
Mechanicsburg, PA 17055
fax: (717) 795-2106
e-mail: criminal.rules@pacourts.usno later than Monday, January 14, 2008.
By te Criminal Procedural Rules Committee:
NICHOLAS J. NASTASI,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 5. PRETRIAL PROCEDURES IN
COURT CASES
PART B(3). Arrest Procedures in Court Cases
(a) Arrest Warrants Rule 513. Requirements for Issuance; dissemination of arrest warrant information; sealing of arrest warrant.
(A) Issuance of Arrest Warrant
(1) In the discretion of the issuing authority, advanced communication technology may be used to submit a complaint and affidavit(s) for an arrest warrant and to issue an arrest warrant.
[(B)] (2) No arrest warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.
[(C)] (3) Immediately prior to submitting a complaint and affidavit to an issuing authority using advanced communication technology, the affiant must personally communicate with the issuing authority by any device which, at a minimum, allows for simultaneous audio-visual communication. During the communication, the issuing authority shall verify the identity of the affiant, and orally administer an oath to the affiant.
[(D)] (4) At any hearing on a motion challenging an arrest warrant, no evidence shall be admissible to establish probable cause for the arrest warrant other than the affidavits provided for in paragraph [(B)] (A)(2).
(B) Dissemination of Arrest Warrant Information
(1) At the request of the affiant or the attorney for the Commonwealth when an arrest warrant is issued following the filing of a complaint, the criminal complaint, the arrest warrant, and any affidavit(s) of probable cause shall not be made available by the court for inspection or dissemination until the warrant has been executed or 10 days after the warrant is issued, whichever occurs first.
(2) In those counties in which the attorney for the Commonwealth requires that complaints and arrest warrant affidavits be approved prior to filing as provided in Rule 507, only the attorney for the Commonwealth may request a delay in the dissemination of the criminal complaint, the arrest warrant, and any affidavit(s) of probable cause.
(3) The period of the delay in dissemination may not be extended for any reason. However, nothing in this rule prevents the sealing of an arrest warrant following the procedures in paragraph (C).
(C) Sealing of Arrest Warrant
(1) For purposes of this paragraph, ''arrest warrant information'' is defined as the criminal complaint in cases in which an arrest warrant is issued, the arrest warrant, and any affidavit(s) of probable cause.
(2) Prior to Execution of an Arrest Warrant:
(a) At the request of the attorney for the Commonwealth, the arrest warrant information may be sealed upon good cause shown.
(b) When the attorney for the Commonwealth intends to request that the arrest warrant information be sealed,
(i) the complaint and the arrest warrant affidavit(s) shall be presented by the attorney for the Commonwealth to a judge of the court of common pleas or an appellate court justice or judge, and
(ii) the affidavit(s) for the arrest warrant shall include the facts and circumstances that are alleged to establish good cause for the sealing of the arrest warrant information.
(c) When the justice or judge seals the arrest warrant information, he or she shall also certify on the face of the warrant that for good cause shown the arrest warrant information is sealed and shall remain sealed and shall state the length of time the warrant information will be sealed.
(d) The sealed arrest warrant information shall be filed with the clerk of courts in the judicial district in which the arrest warrant is issued unless otherwise ordered by the justice or judge.
(e) The arrest warrant information shall be sealed for a period of not more than 60 days, unless the time period is extended as provided in paragraph (f) or paragraph (g).
(f) Upon motion of the attorney for the Commonwealth for good cause shown, the justice or judge who sealed the arrest warrant information may extend the period of time that the warrant information will remain sealed. If the justice or judge is unavailable, another justice or judge shall be assigned to decide the motion.
(g) Upon motion for good cause shown, the justice or judge may grant an unlimited number of extensions of the time that the arrest warrant information shall remain sealed. Each extension shall be for a period of not more than 30 days.
(h) Upon motion of the attorney for the Commonwealth, the justice or judge shall order the arrest warrant information to be unsealed.
(i) After the arrest warrant is executed:
(i) a copy of the complaint, arrest warrant, and supporting affidavits shall be given to the defendant at the preliminary arraignment as provided in Rule 540, unless otherwise ordered as provided in paragraph (i)(ii).
(ii) Upon motion of the attorney for the Commonwealth, the justice or judge who issued the warrant, for good cause shown, may delay giving the defendant a copy of the sealed arrest warrant affidavit(s) for periods of not more than 30 days. In no case shall the delay extend beyond the date of the court arraignment.
(iii) If the justice or judge is unavailable, another justice or judge shall be assigned to decide the motion.
(j) If the motion requesting any extension pursuant to paragraphs (f) or (g) is granted, the motion and any record of the hearing on the motion shall be sealed and transmitted with the extension order to the clerk of courts.
(k) When the order sealing the affidavit(s) and any extensions thereof expires, the clerk of courts shall make the warrant information available for public inspection.
(3) After Execution of an Arrest Warrant,
(a) at the request of the attorney for the Commonwealth or the attorney for the defendant, the arrest warrant affidavit(s) of probable cause may be sealed upon good cause shown.
(b) When the attorney for the Commonwealth or the attorney for the defendant intends to request that the arrest warrant affidavit(s) of probable cause be sealed,
(i) arrest warrant affidavit(s) shall be presented by the attorney for the Commonwealth or the attorney for the defendant to a judge of the court of common pleas or an appellate court justice or judge, and
(ii) the affidavit(s) for the arrest warrant shall include the facts and circumstances that are alleged to establish good cause for the sealing of the arrest warrant affidavits.
(c) When the justice or judge seals the arrest warrant affidavits, he or she also shall issue an order stating that for good cause shown the arrest warrant affidavit(s) is sealed and shall remain sealed and shall state the length of time the affidavit(s) will be sealed.
(d) The court's order and the sealed arrest warrant affidavit(s) shall be filed with the clerk of courts in the judicial district in which the arrest warrant was issued unless otherwise ordered by the justice or judge.
(e) The arrest warrant affidavit(s) shall be sealed for a period of not more than 60 days or until the date of the court arraignment, whichever is shorter.
(h) Upon motion of the attorney for the Commonwealth or the attorney for the defendant, the justice or judge shall order the arrest warrant affidavit(s) to be unsealed.
(j) When the order sealing the affidavit(s) expires, the clerk of courts shall make the affidavit(s) available for public inspection.
Comment This rule was amended in 2008 to add provisions concerning the delay in dissemination of warrant information and sealing the arrest warrant information. Paragraph (A) retains the existing requirements for the issuance of arrest warrants. Paragraph (B) establishes the procedures for a temporary delay in the dissemination of arrest warrant information prior to the execution of the warrant. Paragraph (C) establishes the procedures for temporarily sealing, for good cause shown, the criminal complaint, the arrest warrant, and the affidavit(s) supporting an arrest warrant, the ''arrest warrant information.''
Issuance of Arrest Warrants
Paragraph (A)(1) recognizes that an issuing authority either may issue an arrest warrant using advanced communication technology or order that the law enforcement officer appear in person to apply for an arrest warrant.
This rule does not preclude oral testimony before the issuing authority, but it requires that such testimony be reduced to an affidavit prior to issuance of a warrant. All affidavits in support of an application for an arrest warrant must be sworn to before the issuing authority prior to the issuance of the warrant. The language ''sworn to before the issuing authority'' contemplates, when advanced communication technology is used, that the affiant would not be in the physical presence of the issuing authority. See paragraph [(C)] (A)(3).
* * * * * The ''visual'' requirement in paragraph [(C)] (A)(3) must allow, at a minimum, the issuing authority to see the affiant at the time the oath is administered and the information received.
Under Rule 540, the defendant receives a copy of the warrant and supporting affidavit at the time of the preliminary arraignment.
Delay in Dissemination of Arrest Warrant Information
Paragraph (B) was added in 2008 to address the potential dangers to law enforcement and the general public and the risk of flight when arrest warrant information is disseminated prematurely, that is prior to the execution of the arrest warrant. The paragraph provides that the affiant or the attorney for the Commonwealth may request the delay in dissemination of the criminal complaint, the arrest warrant and any affidavit(s) of probable cause for 10 days or until execution. Upon such request, the issuing authority must delay the dissemination. The provisions in the rule that any delay must be specifically requested by law enforcement and any delay is limited to pre-execution arrest warrants reduce the impact of the delay in the disclosure of the arrest warrant information upon the right of public access to warrant information.
Although paragraph (B) permits the filing of a request for delay in dissemination in any case in which an arrest warrant is issued following the filing of a complaint, it is expected that the procedure will be used most frequently in those cases in which arrest warrants are issued at the initiation of the case, either immediately or shortly after the filing of the complaint. In other words, cases in which a summons is issued as the original process but later an arrest warrant is issued may utilize the procedure in paragraph (B). However, the requester should recognize that information might have already been released to the public prior to the request.
Once the arrest warrant is executed, or when 10 days have elapsed from the issuance of the order and the warrant has not been executed, the information must be disseminated unless sealed pursuant to paragraph (C).
Sealing of Arrest Warrants
Paragraph (C) was added in 2008 to codify and further define the practice of temporarily sealing arrest warrants previously recognized in case law such as Commonwealth v. Fenstermacher, 515 Pa. 501, 530 A.2d 414 (1987). Unlike existing case law, which only addresses the sealing of arrest warrants after execution, the procedures in paragraph (C) apply to all arrest warrants.
Magisterial district judges, bail commissioners, and municipal court judges do not have authority to seal arrest warrant information. In cases in which it is believed that there is good cause to seal the arrest warrant information, the request for the warrant must be presented to a judge of the court of common pleas or a justice or judge of an appellate court.
Paragraph (C) establishes two procedures, recognizing that there will be a different purpose for the request to seal based upon the time when the request is made either prior to or after the execution of the warrant. The first procedure, contained in paragraph (C)(2), permits the attorney for the Commonwealth to request that the criminal complaint, the arrest warrant, and any affidavit of probable cause be sealed. Ordinarily the sealing of arrest warrants under these procedures would be limited to cases in which there is concern that premature disclosure of the existence of the arrest warrant will endanger those serving the warrant or will impel the subject of the warrant to flee. Therefore, when determining whether good cause exists to seal the arrest warrant information, the justice or judge should consider whether revealing the information would encourage flight or resistance.
The procedure in paragraph (C)(2) may be used to seal an arrest warrant from the time the arrest warrant is issued or after the expiration of an order delaying dissemination of arrest warrant information under paragraph (B). In the former situation, the usual practice would be to request the arrest warrant information to be sealed in conjunction with the request for the warrant itself. In the latter situation, the request to seal would obviously be made separately.
Paragraph (C)(3) contains the second procedure that permits either the attorney for the Commonwealth or the attorney for the defendant to request the sealing of any affidavit(s) of probable cause. Ordinarily the sealing of arrest warrant affidavits under this procedure would be limited to cases in which there is concern that disclosure of the contents of affidavits to the public would prejudice the possibility of a fair trial or when there is information that might jeopardize an ongoing investigation or an informant.
Paragraphs (C)(2)(c) requires that the justice or judge issuing the warrant certify on the face of the warrant that for good cause shown the arrest warrant information was sealed, thereby giving notice of the sealing to the defendant. Since paragraph (C)(3)(c) contemplates that the sealing order will be issued only after the warrant has been executed, the judge must certify in the order that for good cause shown the arrest warrant affidavit(s) were sealed.
Unless the justice or judge orders otherwise, paragraphs (C)(2)(d) and (C)(3)(d) requires that the sealed arrest warrant information must be filed with the clerk of courts in the judicial district in which the arrest warrant is issued.
Under paragraph (C)(2), an order sealing the arrest warrant information is limited in duration to not more than 60 days. Extension of this period may be granted only upon the showing of good cause for the extension.
Under paragraph (C)(3), an order sealing the arrest warrant affidavit(s), is limited to a duration of not more than 60 days or until the date of the court arraignment, whichever is shorter. No extensions may be requested.
Paragraph (C)(2)(h) provides that the attorney for the Commonwealth may move to unseal the arrest warrant information and the judge or justice must order the information unsealed. Ordinarily, this will occur in circumstances in which law enforcement wishes to publicize the existence of a previously sealed warrant in order to obtain public assistance in the apprehension of the defendant. The judge or justice may not deny the motion.
When a sealed copy of the arrest warrant information has been given to the defendant, nothing in this rule is intended to preclude the attorney for the Commonwealth from requesting that the justice or judge issue a protective order to prevent or restrict the defendant from disclosing the arrest warrant or the contents of the affidavit. See Rule 573(F).
When the order sealing the arrest warrant information terminates, the clerk of courts must make the arrest warrant information available for inspection.
Official Note: Rule 119 adopted April 26, 1979, effective as to arrest warrants issued on or after July 1, 1979; Comment revised August 9, 1994, effective January 1, 1995; renumbered Rule 513 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended , 2008, effective , 2008.
Committee Explanatory Reports:
* * * * * Report explaining the proposed amendments concerning procedures for delay in dissemination of arrest warrant information and for sealing arrest warrants published at 37 Pa.B. 4178 (August 4, 2007); Supplemental Report explaining the proposed amendments that would provide procedures for delay in dissemination and sealing of arrest warrant information published at 37 Pa.B. 6395 (December 8, 2007).
SUPPLEMENTAL REPORT
Proposed Amendments to Pa.R.Crim.P. 513
Delay in Dissemination Arrest Warrant Information; Sealing of Arrest Warrant information The Committee has examined the question of an issuing authority's obligation to disseminate arrest warrant information to the public prior to the execution of these warrants. This concern has been heightened by the increased level of automation of court records and increased accessibility of this information. The Committee recognizes that premature disclosure of arrest warrant information has the potential for injury or loss of life to the executing officers in addition to the possibility of flight on the part of the defendant. The Committee concluded that such disclosure was inappropriate and that reasonable limitations on pre-execution disclosure should be put into place, regardless of whether that information was disseminated electronically or was physically available for inspection at the issuing authority's office. As a result, in August 2007, the Committee published for comment a proposal that would have added a procedure for delaying the dissemination of pre-execution arrest warrant information.1
Based on comments received, the Committee realized that the limited procedure contemplated in the original proposal did not sufficiently address the safety needs that prompted the question nor ensure that the defendant's or the public's right to access were not unduly impinged. Among the questions raised by the Committee's proposal were: (1) whether there should be a specific time limit on the delay in dissemination after which the warrant information would be available to the public regardless of whether the warrant had been executed; (2) whether the issuing authority should have any discretion in granting a request for a hold on dissemination; (3) whether there should be a ''good cause'' requirement; and (4) whether the request should be limited to being made by the attorney for the Commonwealth.
The Committee concluded that the best method of addressing these questions was by the creation of a ''two-tiered'' system for access to arrest warrant information. The first tier would an expedited procedure in which a brief delay in the dissemination of the warrant information could be granted by an issuing authority as an essentially ministerial function.
The second tier would be a procedure providing for the sealing of arrest warrants. This would be a more deliberative procedure with greater procedural safeguards. It would not necessarily be dependant upon the execution of the warrant. Furthermore, the procedure for sealing arrest warrants could be used to extend the time under which public access to arrest warrant information is limited or could be used as a sealing order from the start in those situations in which a higher degree of confidentiality was deemed necessary.
Detailing procedures for sealing arrest warrants would have the added benefit of providing definition to a practice currently established only in caselaw, see Commonwealth v. Fenstermacher, 515 Pa. 501, 530 A.2d 414 (1987).2 The Committee determined that, while the authority of a court to seal arrest warrants was generally recognized, gaps exist in the practice. This point is highlighted in Fenstermacher that explicitly left open the question of public access to pre-execution arrest warrant information. The Committee believes that judges, practitioners, and the public would benefit from the clarity and uniformity that a detailed rule would provide as to how access to arrest warrant information may be restricted and the standards for determining if such restrictions should be granted. This clarity and uniformity would provide law enforcement and prosecutors with the tools to ensure public safety while ensuring that defense and public interests are protected.
Therefore, the Committee is proposing amendments to Rule 513 incorporating these principles. Rule 513 would be reorganized with the current text of the rule appearing as paragraph (A), titled ''Issuance of Arrest Warrant.'' The first tier procedures would follow as paragraph (B), titled ''Dissemination of Arrest Warrant Information'' and the second tier would be placed in paragraph (C), titled ''Sealing of the Arrest Warrant.''
The paragraph (B) procedures for delay in dissemination are similar to the Committee's original proposal. An affiant or attorney for the Commonwealth may request that an issuing authority delay dissemination of arrest warrant information, in any form, to the public for 10 days only or until the warrant is executed, whichever occurs sooner. The delay may not be extended under this procedure. The issuing authority would not have discretion in granting the delay. It is contemplated that the criminal complaint, the arrest warrant itself, the affidavit of probable cause and the existence of the warrant are included in this limitation.
The delay in dissemination is intended to bind all court personnel. On the other hand, if law enforcement or the prosecution later determines that dissemination of the arrest warrant information would be beneficial, they may do so without seeking rescission of the delay order.
The paragraph (C) procedures for sealing arrest warrants are based upon those for sealing search warrants in Rule 211. They are intended to be used in those cases in which confidentiality of the arrest warrant information needs to be of longer duration or cases in which, from the outset, a higher level of protection is needed. The request must be made by an attorney for the Commonwealth, and may be made only in a court of record, usually the court of common pleas. The sealing order may be granted only upon a showing of good cause. A sealing order will last for 60 days with the possibility of obtaining an extension but only upon a further showing of good cause.
A distinction is made between requests made pre-execution and post-execution sealing. The reason for this distinction is that there will be a different purpose for the request to seal based upon the time when the request is made. Prior to execution, the primary concern will be preventing premature disclosure due to concerns over safety and risk of flight. In this situation, the request will be made on behalf of law enforcement and so the request is limited to the attorney for the Commonwealth. Post-execution requests will most likely be directed to preventing adverse pre-trial publicity or to protect an informant. Therefore, the rule would permit either the attorney for the Commonwealth or the defendant's attorney to make the request to seal.
When the arrest warrant information is sealed prior to execution, upon execution, a copy of the complaint, the arrest warrant, and any affidavits of probable cause shall be given to the defendant unless, for good cause shown, the court grants a delay.
When the arrest warrant affidavit(s) are sealed post-execution, the sealing order must be filed with the clerk of courts.
Unlike the delay in dissemination provisions which bind only the court, arrest warrant information that is sealed may not be divulged by any party until the expiration of the sealing order or until the court grants a request to unseal the arrest warrant information.
[Pa.B. Doc. No. 07-2195. Filed for public inspection December 7, 2007, 9:00 a.m.] _______
1 The original Report was published at 37 Pa.B. 4178 (August 4, 2007).
2 In Fenstermacher, a newspaper filed a motion for access to the probable cause affidavits for an executed arrest warrant, the Supreme Court of Pennsylvania noted that there were important policy considerations which underlay a general right to public access to court records, such as discouraging perjury, enhancing police and prosecutorial performance, and promoting a public perception of fairness in the arrest warrant process. However, the Court found that the public's right to inspect judicial documents is not absolute and the decision regarding public access to arrest warrant affidavits is best left to the discretion of the court. The remedy the Court supported was to require that affidavits be sealed under a court order, not simply upon the request of one of the parties.
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