THE COURTS
Title 210—APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
PART II. INTERNAL OPERATING PROCEDURES
[ 210 PA. CODE CHS. 35 AND 65 ]
Order Adopting Rules 3531 through 3561 of the Pennsylvania Rules of Appellate Procedure; No. 6 Administrative Doc.
[50 Pa.B. 6994]
[Saturday, December 12, 2020]
Order And Now, this 24th day of November, 2020, upon recommendation of the Superior Court's Internal Operating Procedures Committee; the proposal having been published for public comment at 49 Pa.B. 602 (February 9, 2019) and approved by the Commissioned Judges of the Superior Court:
It is Ordered pursuant to Pa.R.A.P. 104 and Pa.R.A.P. 3501 that Rules 3531 through 3561 are adopted in the following form.
This Order shall be effective immediately.
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE III. MISCELLANEOUS PROVISIONS
CHAPTER 35. BUSINESS OF THE SUPERIOR COURT
WIRETAPS Rule 3531. Definitions.
For purposes of Rules 3532—3561, the following words and phrases shall have the meanings set forth below:
Applicant—The Attorney General of Pennsylvania (or a deputy attorney general designated in writing) or a District Attorney (or an assistant district attorney designated in writing) of the county wherein the interception is to be made, who files an application pursuant to the Wiretap Act.
Assigned Judge—A judge of the Superior Court to whom the Supervising Judge assigns to consider an application filed under the Wiretap Act.
Issuing Judge—The judge of the Superior Court who signs a wiretap order.
Supervising Judge—A judge of the Superior Court, designated by the President Judge of the Superior Court, who administers wiretap applications.
Wiretap Act—The Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701 et seq.
Rule 3532. Preemption.
Government officials are advised to consult the Wiretap Act. Any Rule of Appellate Procedure inconsistent with the Wiretap Act is preempted by the Wiretap Act.
Rule 3533. Confidential Docket Number.
The Applicant, not a law enforcement officer, shall call the Prothonotary or Deputy Prothonotary for a confidential docket number. All applications, affidavits, progress reports, and orders shall utilize the confidential docket number assigned to the matter.
Rule 3534. Assignment to a Particular Judge.
A. After receiving an assigned docket number from the Prothonotary or Deputy Prothonotary, the Applicant, not a law enforcement officer, shall call the Supervising Judge, inform him or her of the locale of the interception, and request assignment of a judge to consider the application. The Supervising Judge then shall assign a judge of the Superior Court via written order and inform the Applicant of the Assigned Judge.
B. All matters related to a docket number shall be presented to the Assigned/Issuing Judge. In extraordinary circumstances, where the Assigned/Issuing Judge is unavailable or is no longer a judge of the Superior Court, the Applicant or movant shall contact the Supervising Judge for assignment of a substitute judge. In true emergencies, where delay risks death or serious bodily injury, any judge of the Superior Court may issue any order permitted by law.
Rule 3535. Submission of Application to Assigned Judge.
The Applicant shall submit the application, affidavit, and proposed order to the Assigned Judge. If such documentation is to be presented in advance to the Assigned Judge electronically, the documentation shall be encrypted utilizing a security certificate supplied by the Assigned Judge. This ex parte proceeding need not be on the record if all the necessary information required by the Assigned Judge is contained in the application. However, any additional testimony or explanation, if supplied orally, must be made of record. A recording device utilizing a removable storage medium or court reporter may be used and must be provided by the Applicant. If a court reporter is used, the Assigned Judge shall direct the court reporter to transcribe the proceedings as expeditiously as possible and to submit the stenographic notes and original transcript to the Assigned Judge for sealing at the earliest possible moment. If a recording device is used, the storage medium shall immediately be turned over to the Assigned Judge and sealed. The Assigned Judge should instruct all present concerning the need for confidentiality.
Comment This rule is intended to provide a neutral method, which does not depend on a specific software product, for the secure transmission of electronic documents to the Assigned Judge. This rule requires the use of public-key cryptography. It is anticipated that the Applicant will select strong, common, encryption algorithms, secured by the security certificate (i.e. public key), to protect the confidentiality of documents transmitted electronically
Rule 3536. Content of Application—General.
An application under 18 Pa.C.S. § 5709 must be made upon the personal oath or affirmation of the Applicant and must contain the following:
A. A statement of the Applicant's authority to make the application.
B. A statement of the identity, State Police certification number, and qualifications of the investigative or law enforcement officer who will supervise the conduct of the interception and the identity of the agency which will conduct the interception.
C. An affidavit by the investigative or law enforcement officer who has knowledge of relevant information justifying the application, including a statement that the Applicant seeks authorization to intercept wire, oral, or electronic communications of the subject(s) of the investigation concerning one or more of the offenses listed in 18 Pa.C.S. § 5708.
D. A statement that the Applicant has discussed the above circumstances of the offenses with the officer who has conducted the investigation to date and has examined the officer's affidavit (which is attached and incorporated by reference).
E. A complete statement of the facts concerning all previous applications known to the Applicant made to any court for authorization to intercept a wire, electronic, or oral communication involving any of the same facilities or places specified in the application, or involving any person whose communication is to be intercepted, and the action taken by the court on each such application.
F. Where the application is for the renewal or extension of an order, a particular statement of facts showing the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.
G. A request that, based on the facts and circumstances set forth in the application and the attached affidavit, the Assigned Judge issue an order pursuant to 18 Pa.C.S. § 5710 authorizing the designated officers to intercept wire, electronic, or oral communications to and from, or on, the described devices or at the described premises until the earlier of:
1. communications are intercepted which reveal:
i. the manner in which the subject(s) and others unknown have participated, are participating, or will participate in the commission of the enumerated offenses,
ii. the identities of their confederates, and
iii. the nature of their operation or criminal enterprise; or
2. a period of 30 days or less.
H. The application shall request that, pursuant to 18 Pa.C.S. § 5712(f), the order direct the communication service provider to furnish the Applicant forthwith with all information, facilities, and technical assistance (including in-progress traces) to accomplish the interception unobtrusively and with a minimum of interference with the services being afforded by the company to the subject(s) and that the company be compensated by the Applicant's office at the prevailing rates.
I. If it is reasonably necessary that law enforcement officers enter the described premises for the purpose of installing, maintaining, or removing intercepting devices, the Applicant shall request that, pursuant to 18 Pa.C.S. § 5712(g), the Assigned Judge authorize the entry of the described premises or facilities by the designated officers as often as necessary solely for the purpose of installing, maintaining, or removing intercepting devices. Prior to such entry, the Issuing Judge must, if practical, be notified in writing of the time and method of each such entry. If prior notice is impractical, the Issuing Judge must be notified within 48 hours of entry.
J. In the event a pen register, mobile communications tracking information, trap and trace device, or telecommunication identification interception device has been or is being utilized to support the affidavit under this Rule, the Applicant shall, as part of the application, certify that the authority for the use of the pen register, mobile communications tracking information, trap and trace device, or telecommunication identification interception device which was or is being utilized was obtained pursuant to probable cause. A copy of the affidavit of probable cause submitted in support of the application for the pen register, mobile communications tracking information, trap and trace device, or telecommunication identification must accompany the application for the wiretap.
K. Any applications and all subsequent motions or petitions relating to an application must be presented to the Assigned/Issuing Judge by an attorney-at-law.
L. Form applications are available to assist the Applicant and may be obtained from the Supervising Judge.
Rule 3537. Content of Application—Target Specific Wiretaps.
An application for a target specific wiretap pursuant to 18 Pa.C.S. § 5712.1 that does not comply with 18 Pa.C.S. § 5712(a)(3) and/or 18 Pa.C.S. § 5709(3)(iv) and (v), shall set forth:
A. In the case of oral communications:
1. a full and complete statement as to why specification is not practical and identifies the person committing the offense and whose communications are to be intercepted; and
2. a request that the Assigned Judge find that specification is not practical.
B. In the case of wire or electronic communications:
1. the identity of the person believed to be committing the offense and whose communications are to be intercepted, and the facts showing there is probable cause to believe that the person's actions could have the effect of thwarting interception by changing facilities or devices.
2. a request that the Assigned Judge find that the purpose for the target specific order has been adequately shown.
C. In the event the affiant seeks a supplementary order for a target specific wiretap, such application shall contain:
1. The identity of the investigative or law enforcement officers or agency to whom the authority to intercept wire, electronic, or oral communication is given, and the name and official identity of the Applicant.
2. The identity of or a particular description of the person, if known, whose communications are to be intercepted.
3. The period of time during which the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.
4. The facts supporting a showing of reasonable suspicion that the target of the original order has in fact changed communications devices or facilities.
5. The facts supporting a showing of reasonable suspicion that the target of the original order is likely to use the additional facility or device or place for criminal purposes similar to or related to those specified in the original order.
Rule 3538. Content of Application—Mobile Communication Tracking, Pen Registers, Trap and Trace Devices, and Telecommunication Identification Interception Devices.
An application for an order authorizing the installation and usage of pen registers, trap and trace devices, telecommunication identification interception devices and the disclosure or production of mobile communication tracking information shall contain:
A. The Applicant's identity and the identity of the investigative or law enforcement agency conducting the investigation.
B. A certification by the Applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency.
C. An affidavit by an investigative or law enforcement officer which establishes probable cause for the issuance of an order or extension of an order under 18 Pa.C.S. § 5773.
Rule 3539. Content of Affidavit.
The investigative or law enforcement officer's affidavit shall contain the following:
A. The affiant's title, pertinent employment history, authority to conduct investigations, and experience in conducting investigations of similar offenses.
B. The name, qualifications, and State Police certification number of the officers who will supervise and conduct the interception of the communications as well as the agency which will conduct the interception.
C. A statement of the details as to the particular offense that has been, is being, or is about to be committed.
D. The identity of the person or persons, if known, who are believed to be committing one or more of the crimes in 18 Pa.C.S. § 5708, and whose communications will be intercepted.
E. The particular type of communication to be intercepted; e.g., in a gambling case, transmittal and acceptance of wagers placed on the outcome of sporting events and horse race results, line information, etc.
F. Except where an application is filed pursuant to Rule 3537
1. The character and location of the particular communication facilities involved or the particular place where the oral communications will be intercepted;
2. The facts and circumstances establishing probable cause to believe that the subject(s) has committed, is committing or will commit one of the crimes enumerated in 18 Pa.C.S. § 5708;
3. The facts and circumstances establishing probable cause to believe that the particular wire, electronic, or oral communications of the subject(s) concerning those offenses may be obtained through the proposed interception;
4. The facts and circumstances establishing probable cause to believe that the facilities from which, or the place where, the wire, electronic, or oral communications are to be intercepted, are, have been, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name(s) of, or commonly used by such subject(s).
G. The period of time (not to exceed 30 days) for which the interception will be needed, and if the character of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular statement of facts establishing probable cause to believe that additional communications of the same type will occur and should be intercepted thereafter.
H. A particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and failed or reasonably appear unlikely to succeed if tried or are too dangerous to employ, e.g., standard visual or aural surveillance techniques, questioning of subject under an immunity grant, and/or use of search warrants.
I. The facts supporting these findings of probable cause should be as current as practical. The age of the facts will be considered when determining whether the prosecutor has established probable cause.
Rule 3540. Additional Testimony or Documentary Evidence.
The Assigned Judge may require the Applicant to provide additional testimony or documentary evidence during the in camera proceeding.
Rule 3541. Request for Identity of Informant.
Where, pursuant to 18 Pa.C.S. § 5710(b), the Assigned Judge requests the identity of an informant, such proceedings must be on the record, except for the name or information that could lead to the identification of the informant which may be provided in camera and off the record.
Rule 3542. Orders—Notice of Confidentiality.
Upon consideration of the application, the Assigned Judge may enter an ex parte order authorizing the interception of wire, electronic, or oral communications that are being intercepted anywhere in the Commonwealth. All proposed orders shall include, on the first page, the following notice of confidentiality to third parties:
WIRETAP CONFIDENTIALITY
NOTICE You have been served with an intercept order pursuant to Pennsylvania's Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §§ 5701—5781 (the ''Wiretap Act'').
In order to implement wiretaps and electronic surveillance authorized by intercept orders, the assistance of third parties, those outside of law enforcement, is required. You have been made aware of an intercept order because your assistance is required to facilitate wiretapping or other surveillance in an on-going criminal investigation.
This is a very serious and highly confidential matter and must be treated with the utmost care and discretion. Except as specifically authorized under the Wiretap Act, IT IS A CRIME TO WILLFULLY USE OR DISCLOSE THE EXISTENCE OF AN INTERCEPT ORDER. SUCH USE OR DISCLOSURE IS PUNISHABLE BY IMPRISONMENT OF UP TO 2 YEARS, AND A FINE OF UP TO $5,000.
The Wiretap Act provides as follows:
§ 5719. Unlawful use or disclosure of existence of order concerning intercepted communicationExcept as specifically authorized pursuant to this subchapter any person who willfully uses or discloses the existence of an order authorizing interception of a wire, electronic or oral communication is guilty of a misdemeanor of the second degree.(A misdemeanor of the second degree is punishable by imprisonment of up to two years, 18 Pa.C.S. § 1104, and a fine of up to $5,000, id. § 1101.)See also 18 Pa.C.S. §§ 5725, 5726 and 5717.
Rule 3543. Orders—Probable Cause Statement.
A proposed order, except those pertaining to supplementary target specific orders or orders under 18 Pa.C.S. §§ 5771—5773, shall be submitted by the Applicant to the Assigned Judge, and it shall state that based on the application, the Assigned Judge finds probable cause to believe the following:
A. The person(s) whose communication is to be intercepted is committing, has committed, or is about to commit the offense(s) set forth in the application.
B. Particular communications concerning such offense(s) may be obtained through such interception.
C. Normal investigative procedures with respect to such offense(s) have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ.
D. The facilities from which (or the place where) the wire, electronic or oral communications are to be intercepted, are, have been, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by, the subject(s).
E. The investigative or law enforcement officers or agency to be authorized to do the interception are qualified by training and experience to execute the interception sought and are certified under 18 Pa.C.S. § 5724.
F. The application is based on new evidence or information different from and in addition to the evidence or information offered to support any prior order for interception (other than a renewal or extension of an existing order).
Rule 3544. Orders—Supplementary Target Specific.
A proposed order for a supplementary target specific wiretap shall be submitted to the Assigned Judge, and it shall state that based on the application, the Assigned Judge finds reasonable suspicion that:
A. The target of the original target specific wiretap has in fact changed communication devices or facilities or is presently using additional communication devices, communications facilities, or places.
B. The target of the original target specific wiretap is likely to use the specified communications device or facility for criminal purposes similar to or related to those specified in the original order.
C. The Applicant will be responsible for the supervision of the interception.
Rule 3545. Orders—Mobile Communication Tracking, Installation and Use of a Pen Register, Trap and Trace Device, and Telecommunication Identification Interception Device.
A proposed order for mobile communication tracking, installation and use of a pen register, trap and trace device, or a telecommunication identification interception device shall be submitted to the Assigned Judge, and it shall state:
A. There is probable cause to believe that information relevant to an ongoing criminal investigation will be obtained from the targeted telephone.
B. The identity, if known, of the person to whom is leased or in whose name is listed the targeted telephone, or, in the case of the use of a telecommunication identification interception device, the identity, if known, of the person or persons using the targeted telephone.
C. The identity, if known, of the person who is the subject of the criminal investigation.
D. If the order is for a pen register or trap and trace device only, the physical location of the targeted telephone.
E. A statement of the offense to which the information likely to be obtained by the pen register, trap and trace device, or the telecommunication identification interception device relates.
F. Direct, upon the request of the Applicant, the furnishing of information, facilities and technical assistance necessary to accomplish the installation of the pen register under 18 Pa.C.S. § 5771.
G. In the case of a telecommunication identification interception device, direct that all interceptions be recorded and monitored in accordance with 18 Pa.C.S. § 5714(a)(1) and (2) and (b).
H. The order authorizes the disclosure or production of mobile communication tracking information or installation and use of a pen register, trap and trace device, or a telecommunication identification interception device for a period not to exceed 60 days.
I. Extensions of such an order may be granted but only upon an application for an order under 18 Pa.C.S. § 5772 and upon the judicial finding required by 18 Pa.C.S. § 5772(a). The period of each extension shall be for a period not to exceed 30 days.
J. The order be sealed until otherwise ordered by the Issuing Judge.
K. The person owning or leasing the targeted telephone, or who has been ordered by the Issuing Judge to provide assistance to the Applicant, not disclose the existence of the mobile communication tracking, pen register, trap and trace device, or telecommunication identification interception device, or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the Issuing Judge.
Rule 3546. Orders—Factual Statement.
After reciting the relevant facts, the order shall set forth the following:
A. The identity of the investigative or law enforcement officers or agency to whom authority to intercept is given, i.e., the supervising officer named in the application along with all qualified members of the named agency.
B. The identity of the Applicant and, if the Applicant is a designee, the identity of the District Attorney or Attorney General.
C. The identity of, or a particular description of, the person(s), if known, whose communications are to be intercepted.
D. The character and location of the particular communication facilities as to which, or the particular place as to which, authority to intercept is granted, except where a target specific order is at issue.
E. A particular description of the type of communication to be intercepted and a statement of the particular offense(s) to which it relates.
F. The period of time during which such interception is authorized not to exceed 30 days, or 60 days in the cases of orders authorizing production or disclosure of mobile communication tracking, the installation and use of pen registers, trap and trace devices, or telecommunication identification interception devices, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained. The order shall state that such interception or tracking is authorized only for that period of time necessary under the circumstances to accomplish the objectives of the interception or tracking. The order shall require that the interception or tracking begin and terminate as soon as practicable and that the interception be conducted in such a manner as to minimize or eliminate interception of communications not otherwise subject to interception under the Wiretap Act and require reasonable efforts, whenever possible, to reduce the hours of interception.
G. The order shall require the Applicant to supervise the interception or tracking.
H. The order should require periodic progress reports to the Issuing Judge indicating the progress made toward achieving the objective of the interception or tracking and the need for continued interception.
I. If requested by the Applicant, the order shall direct the pertinent communications common carrier to furnish the Applicant with all information, facilities, and technical assistance necessary to accomplish the interception or tracking unobtrusively and with a minimum of interference with the services being afforded to the subject(s) of the interception. The order shall provide that the common carrier shall be compensated at prevailing rates.
J. If requested by the Applicant, the order shall authorize the entry of the subject premises or facilities (or other premises necessary to gain entry into the subject premises) by the law enforcement officers previously authorized in the order to conduct the interception as often as necessary solely for the purpose of installing, maintaining or removing an interception device. The order shall further provide that such entry is found to be reasonably necessary to accomplish the purposes of the Wiretap Act and shall require that the Issuing Judge be notified of the time and method of each such entry in advance, if practical, and in any event, within 48 hours of entry.
Rule 3547. Orders—Sealing Procedure.
The Issuing Judge shall note on the order the date and time at which it was signed. The original application, affidavit, and order should be placed in an envelope and sealed by the Issuing Judge. The seal should be in the form of an order signed by the Issuing Judge and affixed to the envelope by the Issuing Judge in such a manner as to prevent the removal of the contents without physically disturbing the seal. The confidential docket number should be placed on the envelope. Form sealing orders are available to assist the Applicant and may be obtained from the Supervising Judge.
Rule 3548. Duplicate Original for Communications Common Carrier.
At the time the original order is signed, a duplicate original should also be signed for presentation to the communications common carrier.
Rule 3549. Transmission of Sealed Materials.
The Assigned/Issuing Judge should then mail or hand deliver the envelope, after inserting it in another envelope marked ''Confidential,'' to the appropriate Superior Court Prothonotary office set forth in the sealing order. Alternatively, the materials may be hand delivered by the Applicant.
Rule 3550. Renewal or Extension Procedure.
To obtain an extension pursuant to 18 Pa.C.S. § 5712(b), an application, affidavit, and proposed extension order shall be submitted to the Issuing Judge. The application must have all of the features contained in the original application and must also contain a particular statement of facts showing the results obtained to date from the interception or a reasonable explanation of the failure to obtain such results.
Rule 3551. Verbal Authorization—Application.
A. When permitted by 18 Pa.C.S. § 5713 and/or 18 Pa.C.S. § 5773 an Applicant may make a verbal, instead of written, application.
B. The verbal application should include as many of the elements of a written application and affidavit as can be provided under the emergency conditions. Application for such authorization should be made in camera, under oath, and on the record. Upon approval of the Assigned Judge, the application may be made by electronic means, e.g., telephone, Skype, or FaceTime. Moreover, if the Assigned Judge requires the application to be on the record, and the application proceedings cannot be recorded stenographically, the Applicant may, with the permission of all speaking parties, record the proceedings.
1. The verbal application must include sufficient facts for the Assigned Judge to find that an emergency situation exists with respect to the investigation of an offense designated in 18 Pa.C.S. § 5708, and
i. The investigation involves conspiratorial activities characteristic of organized crime; or
ii. A substantial danger to life or limb exists.
2. As a result of the facts supporting these findings, authorization for immediate interception of wire, electronic, or oral communications is needed before a written application could, with due diligence, be submitted and acted upon by the Assigned Judge.
Rule 3552. Verbal Authorization—Order.
If the Assigned Judge finds that the statutory requirements are satisfied, he or she may verbally authorize the interception of wire, electronic, or oral communications conditioned upon the filing within 48 hours of a written application for an interception order.
Rule 3553. Verbal Authorization—Required Written Application.
A. The written application and affidavit required by Rule 3552 shall include, in addition to the normal requirements, a recitation of the date, time, place, and circumstances of the verbal authorization.
B. If the Issuing Judge, after granting verbal authorization, denies a subsequent written application, the Applicant shall, in writing, request that the Issuing Judge cause an inventory to be served as provided in 18 Pa.C.S. § 5716. Similarly, if a subsequent written application is not made or, if made, is denied, the Applicant shall, in writing, request the Issuing Judge to seal and retain any recordings of communications intercepted pursuant to verbal authorization.
Rule 3554. Progress Reports.
If the Issuing Judge orders progress reports pursuant to 18 Pa.C.S. § 5712(d), such reports shall be submitted to the Issuing Judge in a manner consistent with Rule 3535. The Issuing Judge shall seal and file the progress reports in the same manner as applications, set forth in Rule 3547.
Rule 3555. Final Reports.
At the expiration of the order, extensions, or renewals, the Applicant must submit a final report consisting of a complete written list of names of persons intercepted (if known), and evidence of offenses discovered, including those offenses not set forth in the application or order. Where communications relating to offenses other than those specified in the application or order are intercepted, the contents of those communications and any evidence derived therefrom must be included in the final report. In addition to the final report, the Applicant shall, as quickly as practical upon the expiration of the order, extensions, or renewals, submit all monitor's records and recordings to the Issuing Judge for sealing.
Rule 3556. Service of Inventory.
Within a reasonable time, but no later than 90 days after termination of the period of the order or any extension(s) or renewal(s) thereof or the date of denial of an order, the Applicant shall file an application with the Issuing Judge seeking an order that an inventory be served upon persons named in the order as provided in 18 Pa.C.S. § 5716(a) or shall file an application with the Issuing Judge seeking an order that postpones such service pursuant to 18 Pa.C.S. § 5716(b).
Rule 3557. 30-Day Report of Assigned Judge.
Within 30 days after the expiration of an order (or an extension or renewal), or the denial of an order confirming verbal approval of interception, the Applicant shall provide to the Issuing Judge a completed WT-2B form, which is provided by the Administrative Office of United States Courts, for his or her signature. After reviewing the form and making any necessary corrections, the Issuing Judge shall send a copy of the WT-2B form to the Administrative Office of Pennsylvania Courts, the Administrative Office of United States Courts, and the Supervising Judge.
Rule 3558. Unsealing—Motions.
A. A motion by an interested party to unseal an application, report, order, or other material previously placed under seal shall be in writing and shall be presented to the Issuing Judge. The Issuing Judge, upon good cause shown, may order an application, report, order, or other material (or portions thereof) within the Prothonotary's file to be unsealed and may impose such conditions or limitations thereon as may be necessary to safeguard the confidentiality of such information. This provision, however, shall not apply to investigative or law enforcement officers who may disclose the information pursuant to Section 5715 of the Wiretap Act.
B. The Prothonotary, without express written permission from the Issuing Judge, shall not surrender original materials constituting a part of his or her file.
C. The motion should identify with particularity the following:
1. The specific application, report, order, or other materials sought to be unsealed.
2. The purpose for which the order is sought.
3. If the application, report, order, or other materials under seal is/are sought for a trial or other criminal proceeding, the motion shall state the type of proceeding, court docket number(s), the name(s) of the party(ies) involved, the forum, the date(s) and approximate length of time for which such application, report, order, or other materials will be utilized and name(s) and designation(s) of the person(s) having access to the unsealed application, report, order, or other materials.
Rule 3559. Unsealing—Orders.
A. The Issuing Judge may, upon good cause shown by the said motion, order unsealed the application, report, order, or other materials which is/are the subject of the motion for the purpose(s) set forth therein. If the motion to unseal is granted, the order authorizing unsealing shall be limited to the application, report, order, or other materials which is/are the subject of the motion. The unsealing order shall be valid for a period not to exceed 20 days or the length of the trial or other criminal proceeding or investigation, whichever period is shorter.
B. The Issuing Judge may entertain a motion to extend the life of the unsealing order and may grant same upon good cause shown. If the motion to extend is granted, the unsealing order may be extended for a period not to exceed 20 days. The motion to extend must be filed before the expiration of a previously granted motion or extension(s) therefor and should state with particularity the reason(s) for the extensions.
C. The Issuing Judge may also entertain a motion to extend the scope of a previously granted unsealing order. The motion to extend shall be filed before the termination of the trial or other criminal proceeding or investigation for which the application, order, or other materials was/were initially unsealed.
Rule 3560. Responsibility for Unsealed Documents.
After the application, report, order, or other material(s) has/have been turned over to the custody of the requesting party(ies) designated in the motion the said requesting party(ies) shall assume complete responsibility for and the safekeeping of such application, order, report, or other materials for the entire duration of the time set forth in the said unsealing order and, further, shall assume responsibility for the safe return of such application, order, report, or other materials to the Prothonotary.
Rule 3561. Return of Documents to Prothonotary.
The application, report, order, or other materials subject to the unsealing shall be returned to the Prothonotary within 48 hours of the expiration of the life of the unsealing order or within 48 hours of the termination of the trial or other criminal proceeding or investigation, whichever event occurs sooner, unless a timely motion to extend the life of the unsealing order or to extend the scope of a previously granted unsealing order has been filed and granted.
Amendments to the Superior Court
Operating ProceduresThe Superior Court of Pennsylvania has adopted amendments to its published Operating Procedures. These amendments are reflected in the Superior Court Operating Procedures with amendments to Pa. Code § 65.51 et seq.
These changes are effective immediately.
Additions are bold and underlined. Deletions are bracketed and boldface.
PART II. INTERNAL OPERATING PROCEDURES
CHAPTER 65. OPERATING PROCEDURES OF THE SUPERIOR COURT
WIRETAPS § 65.51. Introduction.
[Government officials are advised to consult the applicable provisions of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701 et seq. (''Wiretap Act''). Any Operating Procedure inconsistent with the Wiretap Act is preempted by the statute.]
The procedures for proceedings pursuant to the Wiretapping and Electronic Surveillance Control Act formerly found at this location are now located in Chapter 35 of the Pennsylvania Rules of Appellate Procedure.
§ 65.52. [Confidential Docket Number.] Reserved.
[The applicant for the interception of wire, electronic or oral communication is to call the Prothonotary for a confidential docket number. The confidential docket number is to be written on the envelope containing the application for interception which will subsequently be sealed. All applications, affidavits, progress reports, and orders shall utilize the confidential docket number assigned to the matter.]
§ 65.53. [Assignment to a Particular Judge.] Reserved.
[After receiving an assigned docket number from the Prothonotary, the applicant is to call the Supervising Judge designated by the President Judge to make assignments, and request assignment of a judge to entertain the application. The Supervising Judge, after first ascertaining the locale of the proposed interception from the applicant, shall then determine the availability of a judge. The Supervising Judge then shall assign a judge of the Court with due consideration of the nature and location of the proposed interception and the offense being investigated and inform the applicant of the assigned judge.]
§ 65.54. [ Submission of Application to Assigned Judge.] Reserved.
[The applicant should submit the application, affidavit and proposed order to the assigned judge in chambers. This ex parte proceeding need not be on the record if all the necessary information required by the judge is contained within the four corners of the application. However, any additional testimony or explanation, if supplied orally, must be made of record. A tape recorder or court reporter may be utilized and must be provided by the applicant. The judge should be requested to direct the court reporter to transcribe the proceedings as expeditiously as possible and to submit the stenographic notes and original transcript to the Court for sealing at the earliest possible moment. The Court should instruct all present concerning the need for confidentiality.
Comment It is up to the issuing judge whether to simply conduct the entire proceeding on the record. If a tape recorder is utilized, at the close of the hearing, the tape is to be sealed with the application. Further, the judge may require that all additional information be in writing instead of the taking of any oral testimony.]
§ 65.55. [Additional Testimony or Documentary Evidence.] Reserved.
[In the event the judge requires the applicant to provide additional testimony or documentary evidence, such additional matters must be presented by the Attorney General or the District Attorney or their designee.]
§ 65.56. [Request for Identity of Informant.] Reserved.
[Where, pursuant to § 5710(b) of the Act, the judge requests the identity of an informant, such proceedings must be on the record save for any information that could lead to the identification of the informant.
Comment The request of the judge for information concerning the informant should be on the record; however, the actual name of the informant must remain confidential.]
§ 65.57. [Content of Application.] Reserved.
[An application under § 5709 must be made upon the personal oath or affirmation of the Attorney General (or a deputy attorney general designated in writing by the Attorney General) or the District Attorney (or an assistant district attorney designated in writing by the District Attorney) of the county wherein the interception is to be made and must contain the following:
A. A statement of the applicant's authority to make the application. 18 Pa.C.S. § 5709(1).
B. A statement of the identity, State Police certification number and qualifications of the investigative or law enforcement officer who will supervise the conduct of the interception and the identity of the agency which will conduct the interception. 18 Pa.C.S. § 5709(2).
C. A sworn statement, i.e., affidavit, by the investigative or law enforcement officer who has knowledge of relevant information justifying the application, see 18 Pa.C.S. 5709(3), including a statement that the applicant seeks authorization to intercept wire, oral, or electronic communications of the subject(s) of the investigation concerning one or more of the offenses listed in 18 Pa.C.S. § 5708.
D. A statement that applicant has discussed all of the above circumstances of the offenses with the officer who has conducted the investigation to date and has examined the officer's affidavit (which is attached and incorporated by reference).
E. A complete statement of the facts concerning all previous applications known to the applicant made to any court for authorization to intercept a wire, electronic, or oral communication involving any of the same facilities or places specified in the application, or involving any person whose communication is to be intercepted, and the action taken by the court on each such application.
F. Where the application is for the renewal or extension of an order, a particular statement of facts showing the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.
G. A request that, based on the facts and circumstances set forth in the application and the attached affidavit, the Court issue an order pursuant to § 5710 of the Act authorizing the designated officers to intercept wire, electronic, or oral communications to and from, or on, the described devices or at the described premises until the earlier of:
1. communications are intercepted which reveal:
(a) the manner in which the subject(s) and others unknown have participated, are participating, or will participate in the commission of the enumerated offenses,
(b) the identities of their confederates, and
(c) the nature of their operation or criminal enterprise; or
2. a period of thirty (30) days or less.
H. The application should request that, pursuant to § 5712(f) of the Act, the order direct the communication service provider to furnish the applicant forthwith with all information, facilities and technical assistance (including in-progress traces) to accomplish the interception unobtrusively and with a minimum of interference with the services being afforded by the company to the subject(s) and that the company be compensated by the applicant at the prevailing rates.
I. The applicant should state whether, in order to accomplish the purposes of the Act, it is reasonably necessary that law enforcement officers enter the described premises for the purpose of installing, maintaining or removing intercepting devices. If so, the applicant should request that, pursuant to § 5712(g) of the Act, the Court should authorize the entry of the described premises or facilities by the designated officers as often as necessary solely for the purpose of installing, maintaining, or removing intercepting devices. Prior to such entry, the judge issuing the order must, if practical, be notified—preferably in writing—of the time and method of each such entry. If prior notice is impractical, the judge must nevertheless be notified within 48 hours of entry.
J. Any legal applications and all subsequent motions or petitions relating to an application must be presented to the Court by an attorney-at-law.]
§ 65.58. [Target Specific Wiretaps. (18 Pa.C.S. § 5712.1).] Reserved.
[Section 5712.1 of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5712.1, provides that an investigative or law enforcement officer may seek a target specific order. An application for a target specific wiretap must meet the requirements of an application under § 5709 and § 5712, except § 5712(a)(3) and § 5709(3)(iv) and (v), shall not apply if:
A. In the case of oral communications:
i. a full and complete statement as to why specification is not practical and identifies the person committing the offense and whose communications are to be intercepted. The judge must find that the specification is not practical. See 18 Pa.C.S. § 5712.1(a)(1).
B. In the case of wire or electronic communications:
i. the identity of the person believed to be committing the offense and whose communications are to be intercepted, and the applicant shows that there is probable cause to believe that the person's actions could have the effect of thwarting interception by changing facilities or devices. The judge must find that the purpose for the target specific order has been adequately shown. See 18 Pa.C.S. § 5712.1(a)(2).
C. In the event the affiant seeks a supplementary order for a target specific wiretap, such application shall contain:
1. The identity of the investigative or law enforcement officers or agency to whom the authority to intercept wire, electronic, or oral communication is given, and the name and official identity of the person who made the application. See 18 Pa.C.S. § 5712.1(c)(1).
2. The identity of or a particular description of the person, if known, whose communications are to be intercepted. See 18 Pa.C.S. § 5712.1(c)(2).
3. The period of time during which the interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained. See 18 Pa.C.S. 5712.1(c)(3).
4. A showing of reasonable suspicion that the target of the original order has in fact changed communications devices or facilities. See 18 Pa.C.S. § 5712.1(c)(4).
5. A showing of reasonable suspicion that the target of the original order is likely to use the additional facility or device or place for criminal purposes similar to or related to those specified in the original order. See 18 Pa.C.S. § 5712.1(c)(5).
D. A supplementary order shall not act as an extension of the time limit identified in § 5712 (b). See 18 Pa.C.S. § 5712.1(d).]
§ 65.59. [Mobile Communication Tracking, Pen Registers, Trap and Trace Devices, and Telecommunication Identification Interception Devices. (18 Pa.C.S. §§ 5771—5773).] Reserved.
[Sections 5771—5773 of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §§ 5771—5773, authorize the installation and usage of pen registers, trap and trace devices, telecommunication identification interception devices and the disclosure or production of mobile communication tracking information upon a showing of probable cause. An applicant may seek such an order from the Superior Court when an application for an order authorizing interception of communications is or has been made for the targeted telephone or another application for interception under the Wiretap Act has been made involving the same investigation. See 18 Pa.C.S. § 5772(a). An application for such an order shall contain:
A. The identity and authority of the attorney making the application and the identity of the investigative or law enforcement agency conducting the investigation. 18 Pa.C.S. § 5772(b)(1).
B. A certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency. 18 Pa.C.S. § 5772(b)(2).
C. An affidavit by an investigative or law enforcement officer which establishes probable cause for the issuance of an order or extension of an order under section 5773. 18 Pa.C.S. § 5772(b)(3).]
§ 65.60. [Content of Affidavit.] Reserved.
[Section 5709(3) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5709(3), provides that the investigative or law enforcement officer shall execute an affidavit setting forth information justifying the application for an order authorizing interception of wire, electronic, or oral communications. The affidavit should contain the following:
A. The affiant's title, pertinent employment history, authority to conduct investigations, and experience in conducting investigations of similar offenses. See 18 Pa.C.S. § 5709(2).
B. The name, qualifications, and State Police certification number of the officers who will supervise and conduct the interception of the communications as well as the agency which will conduct the interception. See 18 Pa.C.S. § 5709(2).
C. A statement by the affiant setting forth facts which, when viewed in light of the totality of the underlying circumstances, establish their intrinsic reliability.
Comment See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983)
D. The identity of the person or persons, if known, who are believed to be committing one or more of the crimes in 18 Pa.C.S. § 5708, and whose communications will be intercepted. See 18 Pa.C.S. § 5709(3)(i).
E. The particular type of communication to be intercepted; e.g., in gambling case, transmittal and acceptance of wagers placed on the outcome of sporting events and horse race results, line information, etc. See 18 Pa.C.S. § 5709(3)(iii).
F. The character and location of the particular wire oral electronic communication facilities involved or the particular place where the oral communications will be intercepted, see 18 Pa.C.S. § 5709(3)(v), except where target specific orders pursuant to 18 Pa.C.S. § 5712.1 are sought.
G. Where 18 Pa.C.S. § 5712.1, governing target specific wiretaps does not apply, a detailed statement of the facts and circumstances establishing probable cause to believe that:
1. The subject(s) has committed, is committing or will commit one of the crimes enumerated in 18 Pa.C.S. § 5708;
2. The particular wire, electronic, or oral communications of the subject(s) concerning those offenses may be obtained through the proposed interception;
3. The facilities from which, or the place where, the wire, electronic, or oral communications are to be intercepted, are, have been, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name(s) of, or commonly used by such subject(s).
H. The period of time (not to exceed thirty (30) days) for which the interception will be needed, and if the character of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular statement of facts establishing probable cause to believe that additional communications of the same type will occur and should be intercepted thereafter.
I. A particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and failed or reasonably appear unlikely to succeed if tried or are too dangerous to employ, e.g., normal investigative procedures would include standard visual or aural surveillance techniques, questioning of subject under an immunity grant or use of search warrants.
J. The basic probable cause in the affidavit should, whenever practical, be no more than twenty-one (21) days old.
K. In the event a pen register, mobile communications tracking information, trap and trace device, or telecommunication identification interception device has been or is being utilized to support the affidavit under this Rule, the Attorney General, District Attorney, or designee shall, as part of the application, certify that the authority for the use of the pen register, mobile communications tracking information, trap and trace device, or telecommunication identification interception device which was or is being utilized was obtained pursuant to probable cause. See Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989); 18 Pa.C.S. § 5772(b)(3); 18 Pa.C.S. § 5773. A copy of the affidavit of probable cause submitted in support of the application for the pen register, mobile communications tracking information, trap and trace device, or telecommunication identification must accompany the application for the wiretap.]
§ 65.61. [Order: In General. Notice of Confidentiality.] Reserved.
[Section 5710 of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5710 provides that upon consideration of the application, the Court may enter an ex parte order authorizing interception anywhere in the Commonwealth.
All proposed orders shall include, on the first page, the following notice of confidentiality to third parties:
WIRETAP CONFIDENTIALITY
NOTICE You have been served with an intercept order pursuant to Pennsylvania's Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §§ 5701—5781 (the ''Wiretap Act'').
In order to implement wiretaps and electronic surveillance authorized by intercept orders, the assistance of third parties, those outside of law enforcement, is required. You have been made aware of an intercept order because your assistance is required to facilitate wiretapping or other surveillance in an on-going criminal investigation.
This is a very serious and highly confidential matter and must be treated with the utmost care and discretion. Except as specifically authorized under the Wiretap Act, IT IS A CRIME TO WILLFULLY USE OR DISCLOSE THE EXISTENCE OF AN INTERCEPT ORDER. SUCH USE OR DISCLOSURE IS PUNISHABLE BY IMPRISONMENT OF UP TO 2 YEARS, AND A FINE OF UP TO $5,000.
The Wiretap Act provides as follows:
§ 5719. Unlawful use or disclosure of existence of order concerning Intercepted communicationExcept as specifically authorized pursuant to this subchapter any person who willfully uses or discloses the existence of an order authorizing interception of a wire, electronic or oral communication is guilty of a misdemeanor of the second degree.(A misdemeanor of the second degree is punishable by imprisonment of up to two years, 18 Pa.C.S. § 1104, and a fine of up to $5,000, id. § 1101.)See also 18 Pa.C.S. §§ 5725, 5726 and 5717.]
§ 65.62. [Order: Probable Cause Statement.] Reserved.
[A proposed order, except those pertaining to supplementary target specific orders or orders under §§ 5771—5773, should be submitted by the applicant to the Court, and it should state that based on the application, the Court finds probable cause to believe the following:
A. The person(s) whose communication is to be intercepted is committing, has committed, or is about to commit the offense(s) set forth in the application.
B. Particular communications concerning such offense(s) may be obtained through such interception.
C. Normal investigative procedures with respect to such offense(s) have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ.
D. The facilities from which (or the place where) the wire, electronic or oral communications are to be intercepted, are, have been, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by, the subject(s).
E. The investigative or law enforcement officers or agency to be authorized to do the interception are qualified by training and experience to execute the interception sought and are certified under § 5724 of the Act.
F. The application is based on new evidence or information different from and in addition to the evidence or information offered to support any prior order for interception (other than a renewal or extension of an existing order).]
§ 65.63. [Supplementary Target Specific Orders.] Reserved.
[A proposed order for a supplementary target specific wiretap should be submitted to the Court, and it should state that based on the application, the Court finds reasonable suspicion that:
A. The target of the original target specific wiretap has in fact changed communication devices or facilities or is presently using additional communication devices, communications facilities or places. See 18 Pa.C.S. § 5712.1(b)(1).
B. The target of the original target specific wiretap is likely to use the specified communications device or facility for criminal purposes similar to or related to those specified in the original order. See 18 Pa.C.S. § 5712.1(b)(2).
C. The Attorney General or the District Attorney, or their designees, shall be responsible for the supervision of the interception. See 18 Pa.C.S. 5712.1(e).]
§ 65.64. [Orders for Mobile Communication Tracking, Installation and Use of a Pen Register, Trap and Trace Device, and Telecommunication Identification Interception Device.] Reserved.
[A proposed order for mobile communication tracking, installation and use of a pen register, trap and trace device or a telecommunication identification interception device should be submitted to the Court, and it should state:
A. There is probable cause to believe that information relevant to an ongoing criminal investigation will be obtained from the targeted telephone. 18 Pa.C.S. § 5773(b)(i).
B. The identity, if known, of the person to whom is leased or in whose name is listed the targeted telephone, or, in the case of the use of a telecommunication identification interception device, the identity, if known, of the person or persons using the targeted telephone. 18 Pa.C.S. § 5773(b)(ii).
C. The identity, if known, of the person who is the subject of the criminal investigation. 18 Pa.C.S. § 5773(b)(iii).
D. In the use of pen registers and trap and trace devices only the physical location of the targeted telephone. 18 Pa.C.S. § 5773(b)(iv).
E. A statement of the offense to which the information likely to be obtained by the pen register, trap and trace device or the telecommunication identification interception device relates. 18 Pa.C.S. § 5773(b)(v).
F. Direct, upon the request of the applicant, the furnishing of information, facilities and technical assistance necessary to accomplish the installation of the pen register under section 5771 (relating to general prohibition on use of certain devices and exception). 18 Pa.C.S. § 5773(b)(2).
G. In the case of a telecommunication identification interception device, direct that all interceptions be recorded and monitored in accordance with section 5714(a)(1) and (2) and (b) (relating to recording of intercepted communications). 18 Pa.C.S. § 5773(b)(3).
H. The order authorizes the disclosure or production of mobile communication tracking information or installation and use of a pen register, trap and trace device, or a telecommunication identification interception device for a period not to exceed 60 days. See 18 Pa.C.S. § 5773(c) (this statutory subsection provision omits reference to mobile communication tracking and therefore the sixty day period is not specifically referenced for mobile communication tracking).
I. Extensions of such an order may be granted but only upon an application for an order under § 5772 and upon the judicial finding required by § 5772(a). The period of each extension shall be for a period not to exceed 30 days.
J. The order be sealed until otherwise ordered by the Court.
K. The person owning or leasing the targeted telephone, or who has been ordered by the court to provide assistance to the applicant, not disclose the existence of the mobile communication tracking, pen register, trap and trace device, or telecommunication identification interception device, or the existence of the investigation to the listed subscriber, or to any other person, unless or until otherwise ordered by the Court.
Comment The targeted telephone number, if known, should be included in the proposed order.]
§ 65.65. [ Order: Factual Statement.] Reserved.
[After reciting the relevant facts, the order must set for the following:
A. The identity of the investigative or law enforcement officers or agency to whom authority to intercept is given (i.e., the Supervising Officer named in the application along with ''all qualified members'' of the named agency).
B. The identity of the person who made application for authority to intercept. Since only the District Attorney or the Attorney General may swear to the application form, he must be identified along with any designee who actually submits the application to the Court.
C. The identity of, or a particular description of, the person(s), if known, whose communications are to be intercepted.
D. The character and location of the particular communication facilities as to which, or the particular place as to which, authority to intercept is granted, except where a target specific order is at issue.
E. A particular description of the type of communication to be intercepted and a statement of the particular offense(s) to which it relates.
F. The period of time during which such interception is authorized not to exceed thirty (30) days, or sixty (60) days in the cases of orders authorizing production or disclosure of mobile communication tracking,
1 The sixty day period is not specified by statute for mobile communication tracking in 18 Pa.C.S. § 5773(c). This appears to have been a legislative oversight. the installation and use of pen registers, trap and trace devices, or telecommunication identification interception devices, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained. The order shall state that such interception or tracking is authorized only for that period of time necessary under the circumstances to accomplish the objectives of the interception or tracking. The order shall require that the interception or tracking begin and terminate as soon as practicable and that the interception be conducted in such a manner as to minimize or eliminate interception of communications not otherwise subject to interception under the Act and require reasonable efforts, whenever possible, to reduce the hours of interception.G. The order shall require the Attorney General or the District Attorney or their designees to supervise the interception or tracking.
H. The order should require periodic progress reports to the issuing judge indicating the progress made toward achieving the objective of the interception or tracking and the need for continued interception.
I. If requested by the applicant, the order shall direct the pertinent communications common carrier to furnish the applicant with all information, facilities and technical assistance necessary to accomplish the interception or tracking unobtrusively and with a minimum of interference with the services being afforded to the subject(s) of the interception. The order shall provide that the common carrier shall be compensated at prevailing rates.
J. If requested by the applicant, the order shall authorize the entry of the subject premises or facilities (or other premises necessary to gain entry into the subject premises) by the law enforcement officers previously authorized in the order to conduct the interception as often as necessary solely for the purpose of installing, maintaining or removing an interception device. The order shall further provide that such entry is found to be reasonably necessary to accomplish the purposes of the Act and shall require that the issuing (authorizing) judge be notified of the time and method of each such entry in advance, if practical, and in any event, within forty-eight (48) hours of entry.]
§ 65.66. [Procedure Upon Signing the Order.] Reserved.
[The judge should note on the order the date and time at which it was signed. The original application, affidavit and order should be placed in an envelope and sealed by the judge. The seal should be in the form of an order signed by the judge and affixed to the envelope by the judge in such a manner as to prevent the removal of the contents without physically disturbing the seal. The confidential docket number should be placed on the envelope.]
§ 65.67. [Seal.] Reserved.
[The seal should set forth the following:
1. Contents of the envelope;
2. The location at which custody of the sealed item should be maintained;
3. Date, time and location of the signing of the sealing order;
4. Signature of the judge.
Comment Neither the targeted telephone number nor any other identifying information should be included on the sealing order.]
§ 65.68. [Duplicate Original for Communications Common Carrier.] Reserved.
[At the time the original order is signed, a duplicate original should also be signed for presentation to the communications common carrier.]
§ 65.69. [Renewal or Extension Procedure.] Reserved.
[A. Section 5712(b) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5712(b), provides that an interception order may be renewed or extended for a period up to thirty (30) days beyond the expiration date of the original order. To obtain such an extension, it is necessary that an application, affidavit and proposed extension order be submitted to the Court. The application must have all of the features contained in the original application and, pursuant to § 5709(4) of the Act, must also contain a particular statement of facts showing the results obtained to date from the interception or a reasonable explanation of the failure to obtain such results.
B. The procedure for obtaining an extension should in all other respects be the same as that used in obtaining the original order.]
§ 65.70. [Verbal Authorization In General.] Reserved.
[Section 5713 of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5713, provides that, in certain emergency situations, verbal authorization to intercept wire, electronic, or oral communications may be given by the Court. Similarly, 18 Pa.C.S. § 5773, governing orders for pen registers, mobile communication tracking devices, trap and trace devices, and telecommunication identification interception devices allows verbal authorization under exigent circumstances. Application for such authorization should be made in camera, under oath and on the record. When, due to time limitations, an application cannot be made in person, the application may be made by telephone. Moreover, whenever the application proceedings cannot be recorded stenographically, by a court reporter provided by the applicant, the applicant should, with the permission of all speaking parties, tape record the proceedings.
Comment The requirement for an under oath and on the record in camera proceeding, as well as the recording of the matter is not covered by statute.]
§ 65.71. [Content of Verbal Application.] Reserved.
[The verbal application should include as many of the elements of a written application and affidavit, supra, as can be provided under the emergency conditions. In any event, the verbal application must include sufficient facts for the Court to find the following:
A. An emergency situation exists with respect to the investigation of an offense designated in § 5708 of the Act.
B. The investigation involves conspiratorial activities characteristic of organized crime; or
C. A substantial danger to life or limb exists.
D. As a result of (A) and (B) or (C), authorization for immediate interception of wire, electronic or oral communications is needed before a written application could, with due diligence, be submitted and acted upon by the Court.]
§ 65.72. [Verbal Authorization Contingent Upon Written Application.] Reserved.
[Based on these findings, the Court may verbally authorize interception, pursuant to § 5713, conditioned upon the filing within forty-eight (48) hours of a written application for an interception order. Such written application and affidavit should be in the form previously described and should, along with the written order, include the following:
A. A recitation of the date, time, place and circumstances of the verbal authorization.
B. The written authorization conferred by the Court is retroactive to the time of the verbal authorization.
C. The authorized interception shall terminate immediately when the communication sought is obtained. Section 5713 of the Act provides that if the subsequent written application is not made, any interception conducted pursuant to verbal authorization will be illegal.
D. Pursuant to 18 Pa.C.S. § 5773, if exigent circumstances exist, the Court may verbally authorize the installation and use of a pen register, trap and trace device, telecommunications identification interception device, or permit mobile communication tracking. However, a written order authorizing the disclosure must be entered within 72 hours of the oral authorization.]
§ 65.73. [Progress Reports.] Reserved.
[Section 5712(c) of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5712(c), requires that the Attorney General or District Attorney or designee supervise the interception. Pursuant to § 5712(d) of the Act, this Supervising Attorney may be required under the terms of the order to submit periodic progress reports to the Court during the course of the interception. These reports should explain to the Court the progress being made toward achieving the objectives of the interception and should explain why continued interception is necessary. Progress reports shall be sealed and filed in the same manner as applications.
Comment The judge may establish the time period for these reports within his or her order. A period of seven (7) days has proven to be practical.]
§ 65.74. [Content of Final Report.] Reserved.
[Pursuant to § 5712(e) of the Act, at the termination of the interception, the Supervising Attorney must submit a final report consisting of a complete written list of names of persons intercepted (if known) and evidence of offenses discovered, including those offenses not set forth in the application or order. Where communications relating to offenses other than those specified in the application or order are intercepted, the contents of those communications and any evidence derived therefrom must be included in the final report.]
§ 65.75. [Motions for Unsealing Orders.] Reserved.
[A motion by an interested party to unseal an application, report, order, or other document previously placed under seal shall be in writing, shall state specifically the reason for the unsealing order and the use to be made of the unsealed application, report, order, or other document, and, when possible, shall be presented to the judge who ordered the same sealed. The Court, upon good cause shown, may order an application, report, order, or other document within the Prothonotary's file to be unsealed and may impose such conditions or limitations thereon as may be necessary to safeguard the confidentiality of such information.
When a motion to unseal is granted, the Prothonotary, within ten (10) days, shall deliver to the requesting party a certified copy of the document(s) unsealed. The Prothonotary, without express written permission from the Court, shall not surrender original documents constituting a part of his or her file.
The motion should identify the following:
A. The specific application, report, order or other contents sought to be unsealed. The application, report, order or other contents sought to be unsealed shall be limited and described with particularity.
B. The purpose for which the order is sought.
1. Trial or Other Criminal Proceeding.
If the application, report, order or other contents under seal is/are sought for a trial or other criminal proceeding, the motion shall state the type of proceeding, court docket number(s), the name(s) of the party(ies) involved, the forum, the date(s) and approximate length of time for which such application, report, order or other contents will be utilized and name(s) and designation(s) of the person(s) having access to the unsealed application, report, order, or other contents.
2. Criminal Investigation.
If the application, report, order, or other contents under seal is/are sought for the purpose of disclosure to law enforcement or investigative officers in connection with a criminal investigation, the name(s) of the investigative or law enforcement officer(s) shall be set forth together with his/her/their designation(s), his/her/their authority to conduct said investigation, the purpose of the investigation and the approximate date(s) and length of time for which such application, report, order or other contents are sought.]
§ 65.76. [Order of Court.] Reserved.
[The Court may, upon due cause shown by the said motion, order unsealed the application, report, order, or other contents which is/are the subject of the motion for the purpose(s) set forth therein. If the motion to unseal is granted, the order authorizing unsealing shall be limited to the application, report, order, or other contents which is/are the subject of the motion. The unsealing order shall be valid for a period not to exceed twenty (20) days or the length of the trial or other criminal proceeding or investigation, whichever period is shorter.]
§ 65.77. [Return of Documents to Court.] Reserved.
[The application, report, or order or other contents subject to the unsealing or any extension(s) thereof shall be returned to the Court within forty-eight (48) hours of the expiration of the life of the unsealing order or any extension(s) thereof or within forty-eight (48) hours of the termination of the trial or other criminal proceeding or investigation, whichever event occurs sooner, unless a timely motion to extend the life of the unsealing order or to extend the scope of a previously granted unsealing order has been filed and granted.]
§ 65.78. [Responsibility for Unsealed Documents.] Reserved.
[After a motion for an unsealing order or any extension(s) therefor has/have been granted and the application, report, order or other contents which was/were the subject of the said motion or any extensions(s) therefor granted has/have been turned over to the custody of the investigative or law enforcement officer(s) designated in the motion or any extensions therefor and Order(s) granting same to receive the said application, order, report or other contents for the purpose(s) set forth in the said motion or any extension(s) therefor and Order(s) granting same, the said investigative or law enforcement officer(s) shall assume complete responsibility for and the safekeeping of such application, order, report or other contents for the entire duration of the time set forth in the said unsealing Order or any extension(s) thereof in which said application, order, report or other contents remain in his/her/their custody for the purpose(s) set forth in the said motion or any extension(s) therefor and Order(s) granting same and, further, shall assume responsibility for the safe return of such application, order, report or other contents to the Court pursuant to § 65.77.]
[Pa.B. Doc. No. 20-1730. Filed for public inspection December 11, 2020, 9:00 a.m.]
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