THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CHS. 1 AND 2 ]
Order Amending Rules 203, 209 and 212 and Revision of the Comments to Rules 113, 205 and 210 of the Rules of Criminal Procedure; No. 438 Criminal Procedural Rules Doc.
[43 Pa.B. 6649]
[Saturday, November 9, 2013]
Order Per Curiam
And Now, this 22nd day of October, 2013, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 40 Pa.B. 2394 (May 8, 2010), and in the Atlantic Reporter (Second Series Advance Sheets, Vol. 967), 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 the amendments to Pennsylvania Rules of Criminal Procedure 203, 209, and 212 are adopted and the revisions to the Comments to Pennsylvania Rules of Criminal Procedure 113, 205, and 210 are approved in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective January 1, 2014.
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
CHAPTER 1. SCOPE OF RULES, CONSTRUCTION AND DEFINITIONS, LOCAL RULES
PART A. Business of the Courts Rule 113. Criminal Case File and Docket Entries.
(A) The clerk of courts shall maintain the criminal case file for the court of common pleas. The criminal case file shall contain all original records, papers, and orders filed in the case, and copies of all court notices. These records, papers, orders, and copies shall not be taken from the custody of the clerk [or] of court without order of the court. Upon request, the clerk shall provide copies at reasonable cost.
* * * * *
Comment * * * * * Paragraph (C)(4) recognizes that occasionally disposition of oral motions presented in open court should be reflected in the docket, such as motions and orders related to omnibus pretrial motions (Rule 578), motions for a mistrial (Rule 605), motions for changes in bail (Rule 529), and oral motions for extraordinary relief (Rule 704(B)).
Unexecuted search warrants are not public records, see Rule 212(B), and therefore are not to be included in the criminal case file nor are they to be docketed.
Official Note: Former Rule 9024 adopted October 21, 1983, effective January 1, 1984; amended March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; renumbered Rule 9025 June 2, 1994, effective September 1, 1994. New Rule 9024 adopted June 2, 1994, effective September 1, 1994; renumbered Rule 113 and amended March 1, 2000, effective April 1, 2001; rescinded March 3, 2004 and replaced by Rule 114(C), effective July 1, 2004. New Rule 113 adopted March 3, 2004, effective July 1, 2004; amended July 31, 2012, effective November 1, 2012; Comment revised October 22, 2013; effective January 1, 2014.
Committee Explanatory Reports:
* * * * * Final Report explaining the October 22, 2013 revisions to the Comment regarding the unexe-cuted search warrants published with the Court's Order at 43 Pa.B. 6652 (November 9, 2013).
CHAPTER 2. INVESTIGATIONS
PART A. Search Warrant Rule 203. Requirements for Issuance.
* * * * * (F) A search warrant may be issued in anticipation of a prospective event as long as the warrant is based upon an affidavit showing probable cause that at some future time, but not currently, certain evidence of a crime will be located at a specified place.
(G) When a search warrant is issued, the issuing authority shall provide the original search warrant to the affiant and the issuing authority shall retain a contemporaneously prepared copy.
Comment * * * * * Paragraph (B) 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 a search warrant must be sworn to before the issuing authority prior to the issuance of the warrant. ''Sworn'' includes [affirmed.] ''affirmed.'' See Rule 103. 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).
* * * * * Paragraph (F) was added to the rule in 2005 to provide for anticipatory search warrants. The rule incorporates the definition of anticipatory search warrants set forth in Commonwealth v. Glass, 562 Pa. 187, 754 A.2d 655 (2000).
Paragraph (G) was added to clarify who must retain possession of the original of the search warrant. When the search warrant is issued using advanced communication technology, the version delivered to the police officer is considered the original for purposes of this rule.
Official Note: Rule 2003 adopted March 28, 1973, effective for warrants issued 60 days hence; renumbered Rule 203 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended October 19, 2005, effective February 1, 2006; amended October 22, 2013, effective January 1, 2014.
Committee Explanatory Reports:
* * * * * Final Report explaining the October 22, 2013 amendments regarding the original search warrants published with the Court's Order at 43 Pa.B. 6652 (November 9, 2013).
Rule 205. Contents of Search Warrant.
Each search warrant shall be signed by the issuing authority and shall:
* * * * * (5) direct that the warrant be served in the daytime unless otherwise authorized on the warrant, provided that, for purposes of the rules of Chapter 200[.] , Part A, the term ''daytime'' shall be used to mean the hours of 6 a.m. to 10 p.m.;
* * * * *
Comment Paragraph (5) supplements the requirement of Rule 203(C) that special reasonable cause must be shown to justify a nighttime search. A warrant allowing a nighttime search may also be served in the daytime.
[Paragraph (6) is intended to prevent delays that might otherwise occur if the particular issuing authority who issued the warrant is not on duty at the time a return thereon is ready. Thus, the warrant may be returned to the issuing authority who succeeded the first on duty.]
Paragraph (6) anticipates that the warrant will list the correct judicial officer to whom the warrant should be returned. There may be some instances in which the judicial officer who issues the warrant may not be the one to whom the warrant will be returned. For example, it is a common practice in many judicial districts to have an ''on-call'' magisterial district judge. This ''on-call'' judge would have the authority to issue search warrants anywhere in the judicial district but may not be assigned to the area in which the search warrant would be executed. There may be cases when the warrant is incorrectly returned to the judge who originally issued the warrant. In such cases, the issuing judge should forward the returned search warrant to the correct judicial officer. Thereafter, that judicial officer should administer the search warrant and supporting documents as provided for in these rules, including the Rule 210 requirement to file the search warrant and supporting documents with the clerk of courts.
Paragraph (8) implements the notice requirement in Rule 211(C). When the affidavit(s) is sealed pursuant to Rule 211, the justice or judge issuing the warrant must certify on the face of the warrant that there is good cause shown for sealing the affidavit(s) and must also state how long the affidavit will be sealed.
Official Note: Rule 2005 adopted October 17, 1973, effective 60 days hence; amended November 9, 1984, effective January 2, 1985; amended September 3, 1993, effective January 1, 1994; renumbered Rule 205 and amended March 1, 2000, effective April 1, 2001; amended October 19, 2005, effective February 1, 2006; Comment revised October 22, 2013, effective January 1, 2014.
Committee Explanatory Reports:
* * * * * Final Report explaining the October 22, 2013 revisions to the Comment regarding the return of the search warrant published at 43 Pa.B. 6652 (November 9, 2013).
Rule 209. Return With Inventory.
(A) The law enforcement officer executing the search warrant shall return the search warrant promptly after the search is completed, along with any inventory required under paragraph (C), to the issuing authority.
(B) Unexecuted warrants shall be returned promptly to the issuing authority once the period of time authorized for execution of the warrant has expired. The affiant shall retain a copy of the returned unexecuted search.
(C) An inventory of items seized shall be made by the law enforcement officer serving a search warrant. The inventory shall be made in the presence of the person from whose possession or premises the property was taken, when feasible, or otherwise in the presence of at least one witness. The officer shall sign a statement on the inventory that it is a true and correct listing of all items seized, and that the signer is subject to the penalties and provisions of 18 Pa.C.S. § 4904(b)—Unsworn Falsification To Authorities. The inventory shall be returned to and filed with the issuing authority.
[(B)] (D) The judicial officer to whom the return was made shall, upon request, cause a copy of the inventory to be delivered to the applicant for the warrant and to the person from whom, or from whose premises, the property was taken.
[(C)] (E) When the search warrant affidavit(s) is sealed pursuant to Rule 211, the return shall be made to the justice or judge who issued the warrant.
[Comments] Comment The inventory is required to ensure that all items seized are accounted for in the return to the issuing authority. It thus differs from the receipt required by Rule 208, which is for the personal records of those from whose possession or from whose premises property was taken. In some cases, however, the list in the receipt may be sufficiently detailed so as to also be sufficient for use in the inventory. The inventory need not be sworn to before the issuing authority; however, the officer is subject to statutory penalties for unsworn falsification.
The rule was amended in 2013 specifically to require that the executed warrant be returned to the issuing authority. This amendment reflects a procedure with a long-standing practice but one that had not been codified in the rules.
See Rule 205(6) regarding the circumstances under which the issuing authority to whom the warrant is returned may differ from the one that issued the warrant.
As provided in Rule 205(4), search warrants generally authorize execution within a period not to exceed two days. Paragraph (B) requires that an unexecuted warrant be returned to the issuing authority upon expiration of this period.
Unexecuted search warrants are not public records, see Rule 212(B), and therefore are not to be included in the criminal case file nor are they to be docketed.
For the obligation of the Commonwealth to disclose exculpatory evidence, see Rule 573 and its Comment.
Official Note: Rule 2009 adopted October 17, 1973, effective 60 days hence; amended April 26, 1979, effective July 1, 1979; amended September 3, 1993, effective January 1, 1994; renumbered Rule 209 and amended March 1, 2000, effective April 1, 2001; amended October 22, 2013, effective January 1, 2014.
Committee Explanatory Reports:
Report explaining the September 3, 1993 amendments published at 21 Pa.B. 3681 (August 17, 1991).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).
Final Report explaining the October 22, 2013 amendments related to the return of the search warrant published with the Court's Order at 43 Pa.B. 6652 (November 9, 2013).
Rule 210. Return of Papers to Clerk.
The judicial officer to whom the warrant was returned shall file the search warrant, all supporting affidavits, and the inventory with the clerk of the court of common pleas of the judicial district in which the property was seized.
Comment See Rule 211 for the procedures when the search warrant affidavit(s) has been sealed.
Unexecuted search warrants are not public records, see Rule 212(B), and therefore are not to be included in the criminal case file nor are they to be docketed.
Official Note: Rule 2010 adopted October 17, 1973, effective 60 days hence; amended September 3, 1993, effective January 1, 1994; renumbered Rule 210 and Comment revised March 1, 2000, effective April 1, 2001; amended October 22, 2013, effective January 1, 2014.
Committee Explanatory Reports:
Report explaining the September 3, 1993 amendments published at 21 Pa.B. 3681 (August 17, 1991).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).
Final Report explaining the October 22, 2013 revisions to the Comment regarding unexecuted search warrants published with the Court's Order at 43 Pa.B. 6652 (November 9, 2013).
Rule 212. Dissemination of Search Warrant Information.
(A) The issuing authority shall not make any search warrants and any affidavit(s) 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].
(B) Unexecuted warrants and the associated affidavits of probable cause are not public records and upon return to the issuing authority the unexecuted warrants and affidavit(s) shall be destroyed by the issuing authority.
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 any search warrant information [to the public] to which the public is entitled, 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.
The rule was amended in 2013 to clarify that unexecuted search warrants are not public records. This change recognizes that often search warrants may be issued that are never executed. This non-execution may arise from many factors, including a discovery that the information that formed the basis of the original issuance of the search warrant was inaccurate. Given the potential harm to the subject of a search warrant as well as potential disruption to public safety and investigations, information related to such expired warrants must remain confidential. See PG Publishing Co. v. Commonwealth, 532 Pa. 1, 614 A.2d 1106 (1992) (''The ex parte application for the 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.'').
Official Note: Rule 212 adopted June 23, 2008, effective August 1, 2008; amended October 22, 2013, effective January 1, 2014.
Committee Explanatory Reports:
* * * * * Final Report explaining the October 22, 2013 amendment providing that expired unexecuted warrants are not public records published with the Court's Order at 43 Pa.B. 6652 (November 9, 2013).
FINAL REPORT1
Amendments to Pa.Rs.Crim.P. 203, 209, and 212, and Comment Revisions to Pa.Rs.Crim.P. 113,
205, and 210
Return of Search Warrants On October 22, 2013, effective January 1, 2014, upon the recommendation of the Criminal Procedural Rules Committee, the Court adopted amendments to Rules 203, 209, and 212 and revisions to the Comments to Rules 113, 205, and 210 to: (1) clarify the requirement to return search warrants to the issuing authority promptly; (2) provide that unexecuted warrants do not constitute public records; and (3) clarify who retains the original search warrant.
Return of Executed Warrants
The Committee began examining the need to specify procedures for the return of executed search warrants because of a reported problem with a municipal police force that was refusing to return search warrants to the magisterial district judge (MDJ) after the warrants had been executed, resulting in the MDJ being unable to forward the case to the clerk of courts because the MDJ did not have all of the case documents required by Rule 210.
Although Rules 205(6) and 209 mention the concept of a return of the warrant, there are no rules that specifically direct the police officer to return the search warrant to the designated judicial officer after it is executed2 . The Committee concluded that an explicit mention in the rules of the requirement to return the warrants after execution would emphasize the need for the return.
The Committee examined procedures from other jurisdictions that provide provisions for the return of search warrants. Some, such as Alabama, contain general provisions while others, like Maryland, are more specific including time limits for the return. The Committee favored the more general model. The Committee rejected setting a time limit for the return, concluding that any time period selected would be arbitrary and there would be no practical sanctions that could be imposed on the police for failing to abide by the limit. Therefore, a new paragraph (A) has been added to Rule 209 that requires the search warrant and inventory to be returned promptly after execution to the issuing authority. Additionally, a cross-reference to Rule 205(6) and its Comment has been added to the Rule 209 Comment to indicate that there may be circumstances under which the issuing authority that issued the warrant may differ from the issuing authority to whom the warrant is returned, e.g., when the warrant was issued by a ''duty'' issuing authority.
Return of Unexecuted Warrants
The Committee also examined the more complex issue of whether to include a provision for the return of unexecuted warrants. There was a good deal of debate over the need for such a provision given that an unexecuted warrant will ultimately expire. The Committee concluded that, since the warrant is a court document, the court has an interest in its ultimate resolution. The members reasoned having unexecuted warrants returned upon expiration provides notice to the issuing authority that the search warrant was not executed and no longer is effective. Accordingly, unexecuted warrants have been included in the requirement that the warrants be returned. The requirement to return the unexecuted search warrant upon expiration has been added as a new paragraph (B) to Rule 209 along with explanatory revisions to the Comment.
The requirement to return unexecuted warrants raised a concern that once these documents have been returned to the issuing authority, they would be considered public records. The Committee recognized that public disclosure of these unexecuted documents could cause problems such as the destruction of evidence or the endangerment of officers serving subsequent warrants. More importantly, there are occasions when the information supporting a search warrant is discovered to be inaccurate or even fraudulent prior to the execution of the warrant so the search warrant will remain unexecuted. However, public disclosure of the information contained in the affidavits supporting these warrants could prove embarrassing or dangerous to the subject of the warrant and therefore constitute a severe harm to that individual's privacy interests.
To resolve this problem, the Committee at first considered a provision that a returned unexecuted warrant should be considered sealed. However, it was clear that such a statement raised a great many more questions, such as the duration of such a sealing order, than could be addressed with a simple statement.
This led to a discussion regarding whether unexecuted warrants are in fact public documents. Pennsylvania strongly favors public access to search warrant information, based on both an Eight Amendment and common law rationale. The clearest pronouncement of this view is found in PG Publishing Co. v. Commonwealth, 532 Pa. 1, 614 A.2d 1106 (1992). However, while noting with approval the process of sealing executed search warrants by court order, the Court 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.
The most recent decision on the question of search warrant records as public records is found in Commonwealth v. Upshur, 592 Pa. 273, 924 A.2d 642 (2007), where the Court stated that:
Certainly, however, any item that is filed with the court as part of the permanent record of a case and relied on in the course of judicial decision-making will be a public judicial record or document. See, e.g., Fenstermaker, 515 Pa. at 510, 530 A.2d at 419 (arrest warrant affidavits filed with a magistrate); PG Publishing Co. v. Commonwealth, 532 Pa. 1, 6, 614 A.2d 1106, 1108 (1992) (search warrants and supporting affidavits).However, Upshur cites PG Publishing for the general proposition that the search warrant and affidavits are to be considered public records but does not note the specific exclusion of unexecuted warrants from this analysis. Additionally, while the language used in citing PG Publishing talks of a document relied on in the course of ''judicial decision-making,'' it is unlikely that the probable cause determination is of a type of judicial decision-making contemplated by the Court. Such determinations are ex-parte proceedings and there is no public right to be present during a probable cause determination. If the search warrant is not utilized in any further proceedings, especially if it is never executed, the probable cause determination would not be reviewable in the public arena.
The Committee concluded that unexecuted search warrants and the associated affidavits of probable cause do not constitute public records until execution, and unexecuted search warrants and their supporting documentation should remain confidential even after return. A statement to that effect has been added as new paragraph (B) to Rule 212. Additionally, because an unexecuted warrant now would never be publically disseminated, the original language in paragraph (A) stating that the warrant would remain undisclosed for no ''longer than 48 hours after the warrant has been issued'' would contradict the provisions of new paragraph (B) and therefore has been deleted. Cross-references to the Rule 212 concept of an unexecuted warrant not being a public record have been added to the Comments to Rules 113, 209, and 210 along with the notation that the returned unexecuted search warrants would not be included in the criminal case file nor docketed.
Once this concept was introduced into the rules, the question then became how best to handle the documents themselves. The returned unexecuted search warrant will be expired and therefore will never be executed. In most cases, the returned warrant would not be a filing in a case and would therefore require separate treatment. Rather than burden the issuing authority with the need to create separate storage arrangements for these documents, the unexecuted search warrant documentation would be destroyed upon return. This procedure also will eliminate the possibility that information harmful to the privacy interests of an individual is made public when it has not resulted in any criminal charges.
This concept was borrowed from Maryland Criminal Procedure Rule 4-601 that states that the ''judge to whom an unexecuted search warrant is returned may destroy the search warrant and related papers or make any other disposition the judge deems proper.''
Brady Implications
The Committee also considered the potential implications of Brady v. Maryland, 373 U.S. 83 (1963) on the proposed new language in Rule 212 that would require the destruction of returned unexecuted warrants. In Brady v. Maryland, 373 U.S. 83, 87 (1963), the U.S. Supreme Court held that ''the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.''
The provisions in Rule 212 that provide for the destruction of unexecuted search warrants deal with documents from unexecuted search warrants that had been returned to the issuing authority. Since Brady and its progeny were concerned with information in the possession of the prosecution, the initial question in the Committee's consideration of this issue was whether the same obligation to preserve and disclose exculpatory information extended to the courts.
In Pennsylvania, there is a limited obligation for such disclosure by the courts when the information is exclusively in the possession of the court. In Commonwealth v. Santiago, 405 Pa. Super. 56, 591 A.2d 1095 (1991), a highly publicized case involving the murder of a police officer, the trial judge conducted pre-trial interviews with potential trial witnesses in camera without either counsel being present. The defendant argued that because neither he nor the prosecution was aware of the contents of such testimony, the trial court owed him a duty of disclosing favorable testimony offered during these interviews. A plurality of the Superior Court held:
In sum, therefore, we conclude that where a trial court is in the sole possession of materially exculpatory evidence, it must disclose that evidence to the defense. We note that the duty here is quite limited in practical effect. Ordinarily, prosecution or defense counsel will be privy to any information available to the judge; hence, the need for judicial disclosure will be obviated. When a judge has exclusive knowledge of such evidence, as here or as in Pennsylvania v. Ritchie, supra, (480 U.S. 39 (1987)) then the duty will arise. Moreover, materiality is another significant limitation. It is only when a miscarriage of justice is threatened that due process requires judicial intervention through sua sponte disclosure. 405 Pa. Super at 91, 591 A.2d at 1113.
The fact pattern in Santiago was fairly unique and the potentially exculpatory evidence was entirely within the possession of the court, the prosecution being excluded from the witness interviews. Similarly, in Pennsylvania v. Ritchie, the U.S. Supreme Court case cited in Santiago above, the trial court conducted an in camera examination of the defendant's child and youth file to determine which portions of the record could be released.
The question raised by the Committee was whether a search warrant is similarly in the exclusive possession of the court. The Committee considered the circumstances under which exculpatory evidence might be found through an unexecuted search warrant. The most likely, albeit rare, scenario is the situation in which the defendant asserts that another individual had committed the offense. In that situation, the fact that the police had at one point sought a search warrant for that individual might bolster such a claim.
Arguably, the requirement to return the unexecuted warrant to the issuing authority places the search warrant within the possession of the court. On the other hand, the law enforcement agency that had requested the search warrant also would be in possession of information related to another individual being targeted as a suspect in the crime with which the defendant is charged as well as copies of the search warrant information.
Furthermore, the Committee questioned how materially exculpatory a search warrant that police never executed, especially in comparison to investigative materials in the possession of the police or prosecution, would be. In other words, any exculpatory materials that might be within the possession of the court would be duplicative of much fuller exculpatory information that was in the possession of the Commonwealth which has an unquestionable duty to provide it to the defendant.
The Committee concluded that the destruction of the search warrant information would not encompass the destruction of any exculpatory evidence since the original form of it would be in the possession of the police or prosecution. However, the Committee did not underestimate the importance of preserving potentially exculpatory evidence. To facilitate the maintenance of unexecuted search warrants that might have Brady implications, a sentence has been included in new paragraph (B) of Rule 209 that requires a copy of the returned unexecuted search warrant to be retained by the affiant. Additionally, a cross-reference reading ''for the obligation of the Commonwealth to disclose exculpatory evidence, see Rule 573 and its Comment'' has been added to the Rule 209 Comment.
Possession of Original Search Warrant
The Committee also received reports of an ongoing dispute in some counties regarding whether the original search warrant document should be given to the requesting police officers or retained by the issuing authority. Some issuing authorities had concluded that the issuing authority should retain the original search warrant and provide the police with copies. Other than the Rule 208 requirement that the police leave a copy of the warrant and affidavits at the premises that was searched, the rules did not address who retains the original search warrant. The Committee concluded that some clarification of this question would be helpful.
The Committee concluded that the more proper method would be to have the serving officer be able to display the actual warrant to the owner of the premises to be searched and so should be given the original of the warrant. However, the Committee recognizes that the rules authorize providing a search warrant to the officer via advanced communications technology (ACT) and did not want to undo that capability.
Therefore, a new paragraph (G) has been added to Rule 203 that would provide that the original of a search warrant be given to the executing police officer. Additionally, language has been added to the Comment that, when the search warrant is obtained using ACT, the version delivered to the police officer should be considered the original.
[Pa.B. Doc. No. 13-2101. Filed for public inspection November 8, 2013, 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.
2 Rule 209 requires the officer who executed the warrant to return the inventory of items seized.
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