THE COURTS
Title 234—RULES OF CRIMINAL PROCEDURE
[ 234 PA. CODE CH. 5 ]
Order Adopting New Rule 513.1, Amending Rule 513 and Approving the Revision of the Comments to Rules 540 and 547 of the Rules of Criminal Procedure; No. 443 Criminal Procedural Rules Doc.
[44 Pa.B. 239]
[Saturday, January 11, 2014]
Order Per Curiam
And Now, this 23rd day of December, 2013, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 37 Pa.B. 4178 (August 4, 2007), 37 Pa.B. 6392 (December 8, 2007), and 38 Pa.B. 5747 (October 18, 2008), and in the Atlantic Reporter (Second Series Advance Sheets, Vols. 926, 934, and 955), 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 Pennsylvania Rule of Criminal Procedure 513.1 is promulgated, the amendments to Pennsylvania Rule of Criminal Procedure 513 are adopted, and the revisions to the Comments to Pennsylvania Rules of Criminal Procedure 540 and 547 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 March 1, 2014.
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.
(A) For purposes of this rule, ''arrest warrant information'' is defined as the criminal complaint in cases in which an arrest warrant is issued, the arrest warrant, any affidavit(s) of probable cause, and documents or information related to the case.
(B) 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)] (B)(2).
(C) DELAY IN DISSEMINATION OF ARREST WARRANT INFORMATION
The affiant or the attorney for the Commonwealth may request that the availability of the arrest warrant information for inspection and dissemination be delayed. The arrest warrant affidavit shall include the facts and circumstances that are alleged to establish good cause for delay in inspection and dissemination.
(1) Upon a finding of good cause, the issuing authority shall grant the request and order that the availability of the arrest warrant information for inspection and dissemination be delayed for a period of 72 hours or until receipt of notice by the issuing authority that the warrant has been executed, whichever occurs first. The 72-hour period of delay may be preceded by an initial delay period of not more than 24 hours, when additional time is required to complete the administrative processing of the arrest warrant information before the arrest warrant is issued. The issuing authority shall complete the administrative processing of the arrest warrant information prior to the expiration of the initial 24-hour period.
(2) Upon the issuance of the warrant, the 72-hour period of delay provided in paragraph (C)(1) begins.
(3) 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 inspection and dissemination of the arrest warrant information.
Comment This rule was amended in 2013 to add provisions concerning the delay in inspection and dissemination of arrest warrant information. Paragraph (A) provides a definition of the term ''arrest warrant information'' that is used throughout the rule. Paragraph (B) retains the existing requirements for the issuance of arrest warrants. Paragraph (C) establishes the procedures for a temporary delay in the inspection and dissemination of arrest warrant information prior to the execution of the warrant.
ISSUANCE OF ARREST WARRANTS
Paragraph [(A)] (B)(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)] (B)(3).
This rule carries over to the arrest warrant the requirement that the evidence presented to the issuing authority be reduced to writing and sworn to, and that only the writing is subsequently admissible to establish that there was probable cause. In these respects, the procedure is similar to that applicable to search warrants. See Rule 203. For a discussion of the requirement of probable cause for the issuance of an arrest warrant, see Commonwealth v. Flowers, 24 Pa.Super. 198, 369 A.2d 362 ([Pa. Super.] 1976).
The affidavit requirements of this rule are not intended to apply when an arrest warrant is to be issued for noncompliance with a citation, with a summons, or with a court order.
An affiant seeking the issuance of an arrest warrant, when permitted by the issuing authority, may use advanced communication technology as defined in Rule 103.
When advanced communication technology is used, the issuing authority is required by this rule to (1) determine that the evidence contained in the affidavit(s) establishes probable cause, and (2) verify the identity of the affiant.
The ''visual'' requirement in paragraph [(C)] (B)(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 (C) was added in 2013 to address the potential dangers to law enforcement and the general public and the risk of flight when arrest warrant information is disseminated prior to the execution of the arrest warrant. The paragraph provides that the affiant or the attorney for the Commonwealth may request, for good cause shown, the delay in the inspection and dissemination of the arrest warrant information for 72 hours or until receipt of notice by the issuing authority that the warrant has been executed, whichever occurs first. Upon a finding of good cause, the issuing authority must delay the inspection and dissemination.
The request for delay in inspection and dissemination is intended to provide a very limited delay in public access to arrest warrant information in those cases in which there is concern that pre-execution disclosure of the existence of the arrest warrant will endanger those serving the warrant or will impel the subject of the warrant to flee. This request is intended to be an expedited procedure with the request submitted to an issuing authority.
A request for the delay in dissemination of arrest warrant information made in accordance with this rule is not subject to the requirements of Rule 576.
Once the issuing authority receives notice that the arrest warrant is executed, or when 72 hours have elapsed from the issuance of the warrant and the warrant has not been executed, whichever occurs first, the information must be available for inspection or dissemination unless the information is sealed pursuant to Rule 513.1.
The provision in paragraph (C)(2) that provides up to 24 hours in the delay of dissemination and inspection prior to the issuance of the arrest warrant recognizes that, in some cases, there may be administrative processing of the arrest warrant request that results in a delay between when the request for the 72-hour period of delay permitted in paragraph (C)(1) is approved and when the warrant is issued. In no case may this additional period of delay exceed 24 hours and the issuing authority must issue the arrest warrant within the 24-hour period.
When determining whether good cause exists to delay inspection and dissemination of the arrest warrant information, the issuing authority must consider whether the presumption of openness is rebutted by other interests that include, but are not limited to, whether revealing the information would allow or enable flight or resistance, the need to protect the safety of police officers executing the warrant, the necessity of preserving the integrity of ongoing criminal investigations, and the availability of reasonable alternative means to protect the interest threatened by disclosure.
Nothing in this rule is intended to limit the dissemination of arrest warrant information to court personnel as needed to perform their duties. Nothing in this rule is intended to limit the dissemination of arrest warrant information to or by law enforcement as needed to perform their duties.
Pursuant to paragraph (C)(3), in those counties in which the district attorney's approval is required only for certain, specified offenses or grades of offenses, the approval of the district attorney is required for a request to delay inspection and dissemination only for cases involving those specified offenses.
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 December 23, 2013, effective March 1, 2014.
Committee Explanatory Reports:
Report explaining the August 9, 1994 Comment revisions published at 22 Pa.B. 6 (January 4, 1992); Final Report published with the Court's Order at 24 Pa.B. 4342 (August 27, 1994).
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 May 10, 2002 amendments concerning advanced communication technology published with the Court's Order at 32 Pa.B. 2591 (May 25, 2002).
Final Report explaining the December 23, 2013 amendments providing procedures for delay in dissemination and sealing of arrest warrant information published with the Court's Order at 44 Pa.B. 243 (January 11, 2014).
(Editor's Note: The following rule is new and printed in regular type to enhance readability.)
Rule 513.1. Sealing of Arrest Warrant.
(A) For purposes of this rule, ''arrest warrant information'' is defined as the criminal complaint in cases in which an arrest warrant is issued, the arrest warrant, any affidavit(s) of probable cause, and documents or information related to the case.
(B) At the request of the attorney for the Commonwealth in the form of a motion, the arrest warrant information may be sealed upon good cause shown at the time the complaint is filed.
(C) Submission to Judge or Justice of Request for Sealed Arrest Warrant
When the attorney for the Commonwealth intends to request that the arrest warrant information be sealed, at the time the complaint is filed, the attorney for the Commonwealth shall present the arrest warrant information to a judge of the court of common pleas or an appellate court judge or justice. The arrest warrant affidavit(s) shall include the facts and circumstances that are alleged to establish good cause for the sealing of the arrest warrant information.
(1) When the judge or justice orders the arrest warrant information sealed, the order shall:
(a) certify that for good cause shown the arrest warrant information is sealed and state the date and time that the sealing of the arrest warrant information shall expire; and
(b) when requested by the attorney for the Commonwealth, specify that the arrest warrant information may be released by the attorney for the Commonwealth to the law enforcement agencies listed in the order.
(2) When a judge of the court of common pleas orders the arrest warrant information sealed, he or she shall accept the filing of the written complaint, which shall be marked as sealed, and shall issue the sealed arrest warrant. When a judge or justice of an appellate court orders the arrest warrant information sealed, he or she shall direct that the complaint be filed in the court of common pleas and the sealed arrest warrant shall be issued by a judge of the court of common pleas.
(3) When the judge or justice issues the sealed arrest warrant, the judge or justice also shall issue an order designating the proper issuing authority before whom the case shall proceed upon execution of the warrant.
(4) When the sealed arrest warrant is issued, the sealed arrest warrant information, the sealing order, and the order designating the proper issuing authority shall be filed with the clerk of courts in the judicial district in which the charges are being filed.
(5) Upon execution of the sealed arrest warrant, the affiant shall file a copy of the sealed arrest warrant information with the proper issuing authority along with copies of the order sealing the arrest warrant information and the order designating the proper issuing authority. Thereafter, the case will proceed before the proper issuing authority.
(D) 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 (D)(1) or (D)(2).
(1) 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 arrest warrant information will remain sealed. If the justice or judge is unavailable, another justice or judge shall be assigned to decide the motion.
(2) 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.
(3) If the motion requesting any extension pursuant to paragraphs (D)(1) or (D)(2) 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 and a copy of the extension order shall be transmitted to the proper issuing authority.
(E) Upon motion of the attorney for the Commonwealth, the justice or judge shall order the arrest warrant information to be unsealed.
(F) Defendant's Access to Sealed Arrest Warrant Information
(1) After the sealed arrest warrant is executed, a copy of the arrest warrant information shall be given to the defendant at the preliminary arraignment as provided in Rule 540, unless otherwise ordered as provided in paragraph (F)(2).
(2) Upon motion of the attorney for the Commonwealth, the justice or judge who issued the warrant, for good cause shown and after hearing, may delay giving the defendant a copy of the sealed arrest warrant information, in whole or in part, for periods of not more than 30 days. In no case shall the delay extend beyond the date of the preliminary hearing.
(3) If the justice or judge is unavailable, another justice or judge shall be assigned to decide the motion.
(G) Until the order sealing the arrest warrant information and any extensions thereof expires, the judge and clerk of courts shall not make the arrest warrant information available for public inspection and dissemination.
Comment This rule was adopted in 2013 to codify and further define the practice of temporarily sealing arrest warrants previously recognized in case law such as Commonwealth v. Fenstermaker, 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 this rule apply to all arrest warrants.
Magisterial district judges, arraignment court magistrates, and municipal court judges do not have authority to seal arrest warrant information; the request for the warrant to be sealed must be presented to a judge of the court of common pleas or a justice or judge of an appellate court.
As provided in paragraph (C)(2), when the request to seal an arrest warrant is presented to a judge of the court of common pleas, the complaint must be filed with common pleas judge who issues the sealing order. In those rare cases in which an appellate court judge or justice orders the arrest warrant information sealed, the complaint shall be filed with an appropriate common pleas judge and the common pleas judge shall issue the sealed arrest warrant. This latter provision is necessary due to the limited capability of the appellate courts to accept initial filings and issue arrest warrants.
A request to seal arrest warrant information made in accordance with this rule is not subject to the requirements of Rule 576.
The rule establishes a standard of ''good cause'' for sealing the arrest warrant information. When determining whether good cause exists to seal the arrest warrant information, the justice or judge must consider whether the presumption of openness is rebutted by other interests that include, but are not limited to, whether revealing the information would allow or enable flight or resistance, the need to protect the safety of police officers executing the warrant, the necessity of preserving the integrity of ongoing criminal investigations, and the availability of reasonable alternative means to protect the interest threatened by disclosure.
The rule assumes that access to a sealed arrest warrant will be severely limited. The rule assumes that this also will limit the availability of the arrest warrant information to a broad class of law enforcement agencies through the various law enforcement computer systems such as the Commonwealth Law Enforcement Assistance Network (CLEAN) and the National Crime Information Center system (NCIC). In many cases, the requester will desire that the information be placed into these systems in order to assist in the execution of the warrant. In these cases, the attorney for the Commonwealth may request that the sealing order provide that the sealed arrest warrant information be provided to law enforcement agencies generally and entry of the arrest warrant information into law enforcement computer systems be required.
Under paragraph (D), 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. Each extension of the order is limited to no more than 30 days duration.
The judge issuing the order to seal has the discretion to set the appropriate duration of the order and whether there are any conditions for unsealing the order. For example, a judge may order that the arrest warrant information must be unsealed 15 days from issuance or automatically upon execution of the warrant.
Paragraph (E) 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.
Paragraph (F)(2) permits a judge or justice to order sealed arrest warrant information to be kept from the defendant even after the defendant is arrest. The judge or justice may order that either the whole or part of the arrest warrant information be kept from the defendant. This provision should only be used in extraordinary circumstances in which there is considerable risk to public safety or the safety of individual witnesses. In determining whether the information is to be kept from the defendant and what portion of the information is to be kept from the defendant, the judge or justice should be guided by the principle that the least restrictive means should be utilized that are consistent with the reason for the requested restriction. For example, if the grounds for requesting delay in providing this information to the defendant is that the affidavit of probable cause contains information regarding identity of an informant and must remain confidential until additional arrests in other ongoing investigations are made, the judge or justice may delay providing a copy of the affidavit of probable cause to the defendant while providing him or her with a copy of the complaint in order to provide the defendant with information regarding the charges.
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).
Until the order sealing the arrest warrant information terminates, the judge and the clerk of courts shall not make the arrest warrant information available for inspection and dissemination.
Official Note: New Rule 513.1 adopted December 23, 2013, effective March 1, 2014.
Committee Explanatory Reports:
Final Report explaining the December 23, 2013 adoption of new Rule 513.1 providing procedures for sealing of arrest warrant information published with the Court's Order at 44 Pa.B. 243 (January 11, 2014).
PART D. Proceedings in Court Cases Before Issuing Authorities Rule 540. Preliminary Arraignment.
* * * * * (F) The issuing authority shall not question the defendant about the offense(s) charged but shall read the complaint to the defendant. The issuing authority also shall [also] inform the defendant:
* * * * *
Comment * * * * * Paragraph (D) requires that the defendant receive copies of the arrest warrant and the supporting affidavit(s) at the time of the preliminary arraignment. See also Rules 513(A), 208(A), and 1003. See Rule 513.1(F) concerning a defendant's access to arrest warrant information that has been sealed.
Paragraph (D) includes a narrow exception that permits the issuing authority to provide copies of the arrest warrant and supporting affidavit(s) on the first business day after the preliminary arraignment. This exception applies only when copies of the arrest warrant and affidavit(s) are not available at the time the issuing authority conducts the preliminary arraignment, and is intended to address purely practical situations such as the unavailability of a copier at the time of the preliminary arraignment.
[Nothing in this rule is intended to address public access to arrest warrant affidavits. See Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987).]
For public access to arrest warrant information, see Rules 513, 513.1, and Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987).
When a defendant has not been promptly released from custody after a warrantless arrest, the defendant must be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay. See Rule 519(A).
* * * * * See Rule 1003(D) for the procedures governing preliminary arraignments in the Philadelphia Municipal Court.
See Chapter 5, Part H, Rules 595, 596, 597, and 598, for the procedures governing requests for transfer from criminal proceedings to juvenile proceedings pursuant to 42 Pa.C.S. § 6322 in cases in which the defendant was under the age of 18 at the time of the commission of the alleged offense and charged with one of the offenses excluded from the definition of ''delinquent act'' in paragraphs (2)(i), (2)(ii), and (2)(iii) of 42 Pa.C.S. § 6302.
Official Note: Original Rule 119 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 119 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 140 September 18, 1973, effective January 1, 1974; amended April 26, 1979, effective July 1, 1979; amended January 28, 1983, effective July 1, 1983; rescinded August 9, 1994, effective January 1, 1995. New Rule 140 adopted August 9, 1994, effective January 1, 1995; amended September 13, 1995, effective January 1, 1996. The January 1, 1996 effective date extended to April 1, 1996; the April 1, 1996 effective date extended to July 1, 1996; renumbered Rule 540 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended August 24, 2004, effective August 1, 2005; amended June 21, 2012, effective in 180 days; amended July 31, 2012, effective November 1, 2012; amended May 2, 2013, effective June 1, 2013; Comment revised December 23, 2013, effective March 1, 2014.
Committee Explanatory Reports:
* * * * * Final Report explaining the December 23, 2013 Comment revisions concerning sealed arrest warrant information published with the Court's Order at 44 Pa.B. 243 (January 11, 2014).
Rule 547. Return of Transcript and Original Papers.
* * * * * (C) In addition to this transcript the issuing authority also shall [also] transmit the following items:
* * * * *
Comment * * * * * See Chapter 5 Part E for the procedures governing indicting grand juries. Pursuant to Rule 556.2(A)(3), the judge is required to notify the issuing authority that the case will be presented to the indicting grand jury. Pursuant to Rule 556.11(A), upon receipt of the notice, the issuing authority is required to close out the case in his or her office, and forward it to the court of common pleas for all further proceedings. When the case is transmitted to the court of common pleas, the clerk of courts should [assiciate] associate the transcript and other documents transmitted by the issuing authority with the motion and order filed pursuant to Rule 556.2(A)(5).
When arrest warrant information has been sealed pursuant to Rule 513.1, the arrest warrant information already will have been filed with the clerk of courts. When the case is transmitted to the court of common pleas, the clerk of courts should associate the transcript and other documents transmitted by the issuing authority with the original file created for the sealing procedure.
Official Note: Formerly Rule 126, adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970; revised January 31, 1970, effective May 1, 1970; renumbered Rule 146 and amended September 18, 1973, effective January 1, 1974; amended October 22, [1982] 1981, effective January 1, 1982; amended July 12, 1985, effective January 1, 1986; effective date extended to July 1, 1986; renumbered Rule 547 and amended March 1, 2000, effective April 1, 2001; amended August 24, 2004, effective August 1, 2005; amended May 1, 2007, effective September 4, 2007, and May 1, 2007 Order amended May 15, 2007; amended July 10, 2008, effective February 1, 2009; amended June 21, 2012, effective in 180 days; amended December 23, 2013, effective March 1, 2014.
Committee Explanatory Reports:
* * * * * Final Report explaining the December 23, 2013 Comment revisions concerning sealed arrest warrant documents published with the Court's Order at 44 Pa.B. 243 (January 11, 2014).
FINAL REPORT1
New Pa.R.Crim.P. 513.1, Amendments to Pa.R.Crim.P. 513, and Revisions to the Comments to Pa.Rs.Crim.P. 540 and 547
Public Access to Pre-Execution Arrest Warrant Information: Delay in Dissemination and Sealing of Arrest Warrant Information for Public Safety Purposes On December 23, 2013, effective March 1, 2014, upon the recommendation of the Criminal Procedural Rules Committee, the Court (1) adopted the amendment of Pa.R.Crim.P. 513 to provide for the temporary delay in the dissemination of arrest warrant information to the public prior to execution, (2) adopted new Rule 513.1 to provide for the sealing of arrest warrant information, and (3) approved correlative changes to the Comments to Rules 540 and 547.
I. Background
For several years, the Committee had examined the question of an issuing authority's obligation to disseminate arrest warrant information to the public prior to the execution of the warrant.2 The Committee recognized the strong tradition and policy in Pennsylvania of maintaining the openness of the courts and court records. At the same time, the Committee recognized that disclosure of arrest warrant information prior to execution 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. This concern had been heightened by the increased level of automation of court records and increased accessibility of this information.
Part of the impetus for the development of this proposal was an examination of Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987),3 in which the Court specifically reserved the question of access to pre-execution arrest warrant information. As a result, the Committee concluded that the current state of the law is unclear to what extent an issuing authority is obligated to make arrest warrant information available to the public at a point in a criminal case when such disclosure has the potential to affect public safety adversely. The Committee struggled to reach a balance between the interests of safety and public access. Ultimately, the Committee concluded 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.
II. Development and Publication of Proposal
The amendments are the product of extensive discussions by the Committee, the publication for comment of three separate Explanatory Reports, review of numerous comments received in response to these publications, and subsequent modifications based on the publication comments.
On August 4, 2007, the Committee published for comment a Report explaining the considerations in the development of a proposal to amend Rule 513 to provide for the temporary delay in the dissemination of arrest warrant information to the public prior to execution. This proposal was similar to the procedures in then-new Rule 212. See 37 Pa.B. 4178 (August 4, 2007). Based on comments received from this publication, the Committee realized that the limited procedure contemplated in the original proposal did not sufficiently address the safety needs that prompted the question nor did it ensure that the defendant's or the public's right to access were not unduly impinged.
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. As originally conceived, the first tier provided for a limitation on dissemination of the arrest warrant information, requested by the affiant or the attorney for the Commonwealth, for no more than 10 days or until the warrant is executed, whichever is sooner. The second tier, which was based on the sealing of search warrant procedures in Rule 211, could have been used to extend the time under which public access to arrest warrant information was limited or could have been used as a sealing order from the start.
In devising this approach, the Committee concluded that detailing procedures for sealing arrest warrants would have the added benefit of providing definition to a practice currently established only in case law, see Commonwealth v. Fenstermaker, supra. 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 Fenstermaker that explicitly left open the question of public access to pre-execution arrest warrant information. The Committee believed 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.
On December 8, 2007, the Committee published for comment a Supplemental Report that contained this revised approach. See 37 Pa.B. 6392 (December 8, 2007). The Committee received several comments. One response argued that the only way in which any restriction may be placed on public access to arrest warrant information is by a formal sealing procedure. There were also questions raised as to the specific procedures to be followed for the execution of sealed arrest warrants, especially with regard to access to the warrant information at the preliminary arraignment as well as concerns about whether the rule would unduly restrict dissemination of the warrant information to law enforcement.
From the Committee's research and analysis, it was concluded there is a substantial difference between a temporary delay in dissemination limited to the pre-execution stage of a proceeding and a full sealing of the information. The first is a limited and temporary delay in dissemination to the public when there is an immediate public safety concern, while the latter is a bestowal of court-ordered confidentiality upon the information of potentially greater duration and restriction of access. The Committee went to considerable effort to differentiate the two concepts by creating two distinct procedures. For both procedures, the Committee has taken great pains to ensure that the public interest in access to the court records is protected by requiring specific grounds for delay or sealing and placing specific time limitations on the duration of the delay and seal.
The Committee concluded that part of the problem with the proposal as published was that the second portion of the proposal mixed procedures for extending the delay in dissemination with procedures similar to the sealing of search warrants. The Committee determined that the distinction would be clearer if the two concepts, delay in dissemination and sealing, were placed in separate rules. The first rule would permit a limited delay in public access to arrest warrant information, while the second rule would provide procedures for sealing an arrest warrant in the traditional sense.
The Committee again revised the proposal as outlined above and a Second Supplemental Report was published on October 18, 2008. See 38 Pa.B. 5747 (October 18, 2008). Some of the responses to this publication opined that it would be better to have a ''blanket'' delay in the dissemination of arrest warrant information in all cases. This type of procedure had been considered by the Committee and rejected as unfeasible from a technological point.
III. Discussion of the Amendments
The amendments create a ''two-tiered'' system for access to arrest warrant information. Rule 513 establishes the first tier with a limitation on the dissemination of arrest warrant information. New Rule 513.1 establishes the second tier with the procedures for sealing arrest warrant information. Correlative changes have been made to the Comments to Rules 540 and 547.
Amendments to Rule 513
Rule 513 has been reorganized to incorporate the delay in dissemination procedures. New paragraph (A) sets forth the definition of ''arrest warrant information.'' The original text of the rule has become new paragraph (B), titled ''Issuance of Arrest Warrant.'' New Paragraph (C), titled ''Dissemination of Arrest Warrant Information,'' provides that 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. Paragraph (C)(1) provides that, upon a finding of good cause, the issuing authority must delay the dissemination of the arrest warrant information for a period of 72 hours from issuance of the warrant or until notice of the execution of the warrant is received by the issuing authority. Paragraph (C)(2) also provides for a limited extension of the 72-hour limited when there is a delay in the administrative processing between the filing of the arrest warrant application and the issuance.
The amendments as originally proposed provided that the delay in dissemination of arrest warrant information would be for 10 days or until execution. This period was reduced to 72 hours in order for the rules to be compatible with the existing administrative practice, developed by AOPC Automation, of accommodating a 72-hour delay of the appearance of the electronic case information on the various court computer systems upon request by law enforcement or prosecutors.
Ordinarily, as soon as a case is created in one of the Court's systems (MDJS, CPCMS, PACMS), the case information will be available immediately for public viewing on the UJS Web Portal. Additionally, when an arrest warrant has been issued, the Court's systems, usually the MDJS, feed that information to the two law enforcement fugitive tracking systems, the Pennsylvania State Police's CLEAN system and the FBI's NCIC system, for dissemination to law enforcement. The administrative policy provides that the availability of this information may be delayed on a case-by-case basis if a written request is made by law enforcement personnel and approved by the issuing authority in a written order. This process applies only to access to the electronic records. Pursuant to the Court's policy on public access to the paper records of the MDJs, the case and warrant information would be available for viewing at the MDJ office unless a seal order had been issued.
AOPC Automation became aware of problems with the 72-hour delay process that necessitated a change that would permit additional time for the delay in availability of the information. There had been cases in which there was a significant amount of time between when the case was set up in the system and when a warrant in that case was issued. On August 9, 2012, the administrative policy was modified to provide up to an additional 24 hours in the delay of dissemination of the warrant information if there is a delay in issuing the warrant. In other words, the 72-hour delay would begin to run from the time that the warrant is issued but if the issuance does not occur at the same time as the creation of the case record, an additional period of delay in dissemination, not to exceed 24 hours, would be available after the case had been created in the system but before issuance.
Since the amendments to Rule 513 were intended to be compatible with the administrative policy, they incorporate a provision in paragraph (C)(1) that, when there is a need for additional time for the administrative processing of the arrest warrant request, a period of 24 hours of additional delay in dissemination may be permitted. It should be noted that, unlike the administrative policy, the amendments to Rule 513 apply to both electronic and paper records. Any further restriction upon public access to the arrest warrant information beyond the period provided in Rule 513(C) must be sought through a sealing order as provided in Rule 513.1.
The temporary delay in dissemination is applicable only to the public. As explained in the Rule 513 Comment, nothing in the rule is intended to limit availability of the information that is subject to the delay to court personnel or law enforcement as needed in the performance of their duties was carried over from the original proposal. When the warrant is sealed, however, the availability of information to all parties would be much more limited. This limitation is discussed in more detail below in the discussion of new Rule 513.1.
Paragraph (C)(2) provides that the 72-hour period of delay begins upon the issuance of the arrest warrant.
Paragraph (C)(3) provides that, in those counties that require the approval of the attorney for the Commonwealth prior to the filing of complaints and arrest warrant request pursuant to Rule 507, only the attorney for the Commonwealth may request a delay in dissemination. As noted in the Comment to Rule 513, this requirement would apply when the attorney for the Commonwealth has elected to only require prior approval of certain offenses.
New Rule 513.1
New Rule 513.1, which is based on and incorporates many of the procedures for sealing search warrants contained in Rule 211, provides the procedures by which, upon a showing of good cause, a common pleas judge4 must order the arrest warrant information to be sealed. The request for sealing must be made by the attorney for the Commonwealth. The Comment provides direction on the application of the good cause standard to requests to seal the arrest warrant information and utilizes language taken from Commonwealth v. Fenstermaker, supra.
Paragraph (C) permits only an attorney for the Commonwealth to request the sealing of the arrest warrant information at the time of the issuance of the arrest warrant. The arrest warrant affidavits must include the good cause for sealing.
Because the access to a sealed arrest warrant is severely limited, even to law enforcement agencies, paragraph (C)(1)(b) places the burden on the attorney for the Commonwealth, if he or she wants the sealed arrest warrant information to be disseminated to other law enforcement agencies, to specifically request that the sealing order provide for the release of the sealed information to these agencies.
Upon a determination of good cause, the judge shall issue the sealing order which shall contain the expiration date of the seal as well as a designation of the issuing authority before whom the defendant should be brought upon execution of the warrant.
Originally, the Committee proposed that the rules provide that the common pleas judge would issue the sealing order only, and that the police would then file the order, complaint, and probable cause affidavit with the proper issuing authority for approval and processing. However, after further consideration, the Committee concluded that a more realistic procedure is to provide that most of the initial procedures and processing of the paperwork in a case in which the arrest warrant information is sealed should remain at the common pleas court, at least until execution of the arrest warrant. In other words, once the common pleas judge orders the sealing, the arrest warrant information will be filed in the clerk of courts' office as a miscellaneous docket case. When the warrant is executed, the attorney for the Commonwealth or the police officer will take copies of all the original filings to the issuing authority designated in the sealing order, and, thereafter, the case will proceed as any other case before the issuing authority. If the case is held for court, the clerk of courts will merge the case from the magisterial district judge with the miscellaneous case previously filed in the clerk of courts' office.
Paragraph (D) states the time limitations on any sealing order as well as the procedures for requesting an extension of the time limitation. Upon issuance of the sealing order, the arrest warrant will remain sealed for a period of not more than 60 days. The attorney for the Commonwealth may seek to extend the sealing of the warrant for additional periods of 30 days but each extension must be support by a showing of good cause.
Paragraph (E) provides that, upon the request of the attorney for the Commonwealth, the arrest warrant shall be unsealed.
Rule 513.1(F), which is modeled on a similar restriction to sealed search warrants found in Rule 211(H)(2), recognizes that the defendant's access to the sealed arrest warrant information may be limited in exceptional circumstances even after execution and the preliminary arraignment. The paragraph provides that, upon a further finding of good cause, the defendant may be denied access to the arrest warrant information for a period of no more than thirty days or the date of the preliminary hearing. The Committee concluded that, as in the search warrant situation, there might be some unique situations, such as the protection of a confidential informant, that necessitate such a severe restriction. The Committee believes that there are sufficient procedures available to seek further review of such an order. However, as a further caution, the Comment to Rule 513.1 specifically states that this procedure should only be used in exceptional cases.
Correlative Changes
Correlative changes are also made to the Comments to Rules 540 (Preliminary Arraignments) and 547 (Return of Transcript and Original Papers) have been revised to include cross-references to new Rule 513.1.
[Pa.B. Doc. No. 14-77. Filed for public inspection January 10, 2014, 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 ''Arrest warrant information'' is defined under the proposed amendments as the criminal complaint in cases in which an arrest warrant is issued, the arrest warrant, any affidavit(s) of probable cause, and documents or information related to the case.
3 In Fenstermaker, 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.
4 The rule also permits the motion to be made to an appellate judge.
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