THE COURTS
Title 234--RULES OF
CRIMINAL PROCEDURE
Order Adopting Rule 212; No. 364; Doc. No. 2
[38 Pa.B. 3651]
[Saturday, July 5, 2008]
Order Per Curiam:
Now, this 23rd day of June, 2008, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 37 Pa.B 1302 (March 24, 2007) and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 865), and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that new Rule of Criminal Procedure 212 is adopted in the form as follows.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective August 1, 2008.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 2. INVESTIGATIONS
PART A. SEARCH WARRANT Rule 212. Dissemination of Search Warrant Information.
The issuing authority shall not make any search warrants and any affidavits of probable cause available for public inspection or dissemination until the warrant has been executed, but in no case shall the delay be longer than 48 hours after the warrant has been issued.
COMMENT: Execution of search warrants carries the potential risk of hazard and premature dissemination of the intention to execute a warrant may greatly increase that risk. For this reason, this rule was adopted in 2008 to delay the dissemination of search warrant information to the general public until after execution or no longer than 48 hours after issuance, whichever is sooner. This rule does not deny disclosure of search warrant information to the public, but rather, temporarily delays the dissemination of that information in order to protect public safety.Once the warrant is executed, the information may be disseminated unless sealed pursuant to Rule 211.Official Note: Rule 212 adopted June 23, 2008, effective August 1, 2008.
COMMITTEE EXPLANATORY REPORTS Final Report explaining new Rule 212 providing for the limitations in dissemination of search warrant information published with the Court's Order at 38 Pa.B. 3651 (July 5, 2008).
FINAL REPORT1
New Pa.R.Crim.P. 212
DISSEMINATION OF SEARCH WARRANT INFORMATION On June 23, 2008, effective August 1, 2008, upon the recommendation of the Criminal Procedural Rules Committee, the Court approved the adoption of new Rule 121 to provide for the temporary delay in dissemination of search warrant information to the public prior to execution.
Recently, the Committee has been presented with questions regarding the obligation of an issuing authority to disseminate search warrant information to the public prior to the execution of these warrants. Concern about pre-execution dissemination has been heightened by the increased level of automation of court records and the correlative increased accessibility of this information.
Premature disclosure of search warrant information has the potential for injury or loss of life to the executing officers, in addition to the possibility of destruction or secretion of evidence. 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 is disseminated electronically or is physically available for inspection at the issuing authority's office.
The Committee believed that such a restriction is consistent with current Pennsylvania law. In PG Publishing Co. v. Commonwealth, 532 Pa. 1, 614 A.2d 1106 (1992), the Court noted with approval the process of sealing executed search warrants by court order but specifically distinguished the pre-execution situation, stating, ''The ex parte application for issuance of a search warrant and the issuing authority's consideration of the application are not subject to public scrutiny. The need for secrecy will ordinarily expire once the search warrant has been executed.'' 532 Pa. at 6, 614 A.2d at 1108.
Therefore, upon the Committee's recommendation, the Court has adopted new Rule 212 that prohibits the issuing authority from disseminating search warrant information, in any form, to the public until the warrant is executed. The search warrant itself, the affidavit of probable cause, and the existence of the warrant are included in this limitation.
As originally proposed, new Rule 212 would not have contained a specific termination point for the delay in dissemination since the time in which a warrant must be executed is of finite duration, usually not to exceed two days from the time of issuance. Based on comments received to the publication of the original proposal suggesting that this finite duration was not entirely clear, the rule was modified to provide specifically that the delay of dissemination should not exceed 48 hours even if the warrant remains unexecuted. Therefore, the restriction on the dissemination of warrant information is temporary, and any impact on the right of public access to court records is very limited.
The delay provisions are placed in a new rule rather than as an amendment to Rule 211, which provides for the sealing of search warrant affidavits, because the procedure here is different in quality and duration from that for the sealing of a warrant. A search warrant sealed pursuant to Rule 211 provides for long-term restriction, up to the date of arraignment, and requires judicial review. The procedure contemplated by new Rule 212 would be of limited duration and ministerial in nature.
[Pa.B. Doc. No. 08-1250. Filed for public inspection July 3, 2008, 9:00 a.m.] _______
1 The Committee's Final Reports 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 Committee's explanatory Final Reports.
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