THE COURTS
PART I. GENERAL
[234 PA. CODE CHS. 100 AND 2000]
Use of Advanced Communication Technology in Arrest and Search Warrants
[29 Pa.B. 4426]
Introduction The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rules 119 (Requirements for Issuance) and 2003 (Requirements for Issuance), and adopt correlative changes to Rules 121 (Duplicate and Alias Warrants of Arrest) and 122 (Execution of Arrest Warrant). This proposal provides for the use of advanced communication technology for the application for and issuance of arrest and search warrants. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's 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 explanatory Reports.
The text of the proposed rule changes precedes the Report.
We request that interested persons submit suggestions, comments or objections concerning this proposal to the Committee through counsel, Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Criminal Procedural Rules Committee, P. O. Box 1325, Doylestown, PA 18901, no later than Wednesday, September 22, 1998.
By the Criminal Procedural Rules Committee
J. MICHAEL EAKIN,
Chair
Annex A
TITLE 234. RULES OF CRIMINAL PROCEDURE
PART I. GENERAL
CHAPTER 100. PROCEDURE IN COURT CASES
PART III. SUMMONS AND ARREST WARRANT PROCEDURES IN COURT CASES
PART B. ARREST WARRANT PROCEDURES Rule 119. Requirements for Issuance.
(A) 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.
[(a)] (B) No arrest warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.
(C) 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 telephone, or any other device which, at a minimum, allows for simultaneous audio communication. During the communication, the issuing authority shall verify the identity of the affiant, and orally administer an oath to the affiant.
[(b)] (D) 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 [(a)] (B).
Official Note: 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 [.] ; amended , effective .
Comment Paragraph (A) recognizes that an issuing authority 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.
* * * * * For a discussion of the requirement of probable cause for the issuance of an arrest warrant, see Commonwealth v. Flowers, [245 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, or with a summons, or with a court order.
An affiant seeking the issuance of an arrest warrant may use advanced communication technology as defined in Rule 3.
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. Verification methods include, but are not limited to: a ''call back'' system, in which the issuing authority would call the law enforcement agency or police department that the affiant indicates is the entity seeking the warrant; a ''signature comparison'' system whereby the issuing authority would keep a list of the signatures of the law enforcement officers whose departments have advanced communication technology systems in place, and compare the signature on the transmitted information with the signature on the list; or an established ''password'' system.
See Rule 3 for the definition of ''copy.''
Under Rule 140, the defendant receives a copy of the warrant and supporting affidavit at the time of the preliminary arraignment.
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).
Report explaining the proposed amendments concerning using advanced communication technology in warrant procedures published at 29 Pa.B. 4429 (August 21, 1999).
Rule 121. Duplicate and Alias Warrants of Arrest.
[(a)] (A) [Where] When a warrant of arrest has been issued and it appears necessary or desirable to issue duplicates thereof for execution, the issuing authority may issue any number of duplicates. Each duplicate shall have the same force and effect as the original. Costs may be taxed only for one such warrant and only one service fee shall be charged.
[(b)] (B) After service and execution of an original or duplicate warrant, an alias warrant may be issued if the purpose for which the original or duplicate has been issued has not been accomplished.
Official Note: Original Rule 113 adopted June 30, 1964, effective January 1, 1965; suspended January 31, 1970, effective May 1, 1970. New Rule 113 adopted January 31, 1970, effective May 1, 1970; renumbered Rule 121 September 18, 1973, effective January 1, 1974; amended August 9, 1994, effective January 1, 1995 [.] amended ; effective .
Comment This rule permits the use of advanced communication technology for the issuance of duplicate and alias arrest warrants.
Under this rule, warrant information transmitted by using advanced communication technology has the same force and effect as a duplicate or alias arrest warrant. This rule does not require that the transmitted warrant information be an exact copy of the original warrant for purposes of execution under Rule 122. Nothing in this rule, however, is intended to curtail the Rule 140(b) requirement that the issuing authority provide the defendant with an exact copy of the warrant. See Rule 119 (Requirements for Issuance). See also Rule 3 for the definitions of ''advanced communication technology'' and ''copy.''
Committee Explanatory Reports:
Report explaining the August 9, 1994 amendments 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).
Report explaining the proposed amendments concerning using advanced communication technology in warrant procedures published at 29 Pa.B. 4429 (August 21, 1999).
Rule 122. Execution of Arrest Warrant.
[(a)] (A) A warrant of arrest may be executed at any place within the Commonwealth.
[(b)] (B) A warrant of arrest shall be executed by a police officer.
Official Note: Formerly Rule 124, adopted January 28, 1983, effective July 1, 1983; amended July 12, 1985, effective January 1, 1986; January 1, 1986 effective date extended to July 1, 1986; renumbered Rule 122 and Comment revised August 9, 1994, effective January 1, 1995 [.] ; Comment revised ; effective .
Comment No substantive change in the law is intended by paragraph [(a)] (A) of this rule; rather, it was adopted to carry on those provisions of the now repealed Criminal Procedure Act of 1860 that had extended the legal efficacy of an arrest warrant beyond the jurisdictional limits of the issuing authority. The Judicial Code now provides that the territorial scope of process shall be prescribed by the Supreme Court's procedural rules. 42 Pa.C.S. §§ 931(d), 1105(b), 1123(c), 1143(b), 1302(c), 1515(b).
For the definition of police officer, see Rule 3 [(n)].
Section 8953 of the Judicial Code, 42 Pa.C.S. § 8953, provides for the execution of warrants of arrest beyond the territorial limits of the police officer's primary jurisdiction. See also Commonwealth v. Mason, [507 Pa. 396,] 490 A.2d 421 (Pa. 1985).
Pursuant to Rule 140, the defendant is to receive a copy of the warrant and the supporting affidavit at the time of the preliminary arraignment.
For purposes of executing an arrest warrant under this rule, warrant information transmitted by using advanced communication technology has the same force and effect as an original arrest warrant. This rule does not require that the transmitted warrant information be an exact copy of the original warrant. Nothing in this rule, however, is intended to curtail the Rule 140(b) requirement that the issuing authority provide the defendant with an exact copy of the warrant. See Rule 119 (Requirements for Issuance). See also Rule 3 for the definitions of ''advanced communication technology.''
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).
Report explaining the proposed amendments concerning using advanced communication technology in warrant procedures published at 29 Pa.B. 4429 (August 21, 1999).
CHAPTER 2000. SEARCH WARRANTS Rule 2003. Requirements for Issuance.
(A) In the discretion of the issuing authority, advanced communication technology may be used to submit a search warrant application and affidavit(s) and to issue a search warrant.
[(a)] (B) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.
(C) Immediately prior to submitting a search warrant application and affidavit to an issuing authority using advanced communication technology, the affiant must personally communicate with the issuing authority by telephone, or any other device which, at a minimum, allows for simultaneous audio communication. During the communication, the issuing authority shall verify the identity of the affiant, and orally administer an oath to the affiant.
[(b)] (D) At any hearing on a motion for the return or suppression of evidence, or for suppression of the fruits of evidence, obtained pursuant to a search warrant, no evidence shall be admissible to establish probable cause other than the affidavits provided for in paragraph [(a)] (B).
[(c)] (E) No search warrant shall authorize a nighttime search unless the affidavits show reasonable cause for such nighttime search.
Official Note: Adopted March 28, 1973, effective in 60 days [.] ; amended , effective .
Comment Paragraph (A) recognizes that an issuing authority may issue a search warrant using advanced communication technology or order that the law enforcement officer appear in person to apply for a search warrant.
[(a) This rule] Paragraph (B) does not preclude oral testimony before the issuing authority, but it requires that such testimony be reduced to an affidavit prior to issuance of a warrant. All affidavits in support of an application for a search warrant must be sworn to before the issuing authority prior to the issuance of the warrant. ''Sworn'' includes ''affirmed.'' See Rule 3.
[(b)] This subsection] Paragraph (D) changes the procedure discussed in Commonwealth v. Crawley, [209 Pa. Super. 70,] 223 A.2d 885 (Pa. Super. 1966), aff'd per curiam, [432 Pa. 627,] 247 A.2d 226 (Pa. 1968). See Commonwealth v. Milliken, [450 Pa. 310] 300 A.2d 78 (Pa. 1973).
[(c) This section] Paragraph (E) imposes a new requirement in Pennsylvania practice. The requirement of a showing of reasonable cause for a nighttime search highlights the traditional doctrine that nighttime intrusion into a citizen's privacy requires greater justification than an intrusion during normal business hours.
An affiant seeking the issuance of a search warrant may use advanced communication technology as defined in Rule 3.
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. Verification methods include, but are not limited to: a ''call back'' system, in which the issuing authority would call the law enforcement agency or police department that the affiant indicates is the entity seeking the warrant; a ''signature comparison'' system whereby the issuing authority would keep a list of the signatures of the law enforcement officers whose departments have advanced communication technology systems in place, and compare the signature on the transmitted information with the signature on the list; or an established ''password'' system.
See Rule 3 for the definition of ''copy.''
Committee Explanatory Reports:
Report explaining the proposed amendments concerning using advanced communication technology in warrant procedures published at 29 Pa.B. 4429 (August 21, 1999).
REPORT
Proposed Amendments to Pa.Rs.Crim.P. 119 and 2003; Correlative Changes to Pa.Rs.Crim.P. 121 and 122
Using Advanced Communication Technology for Search and Arrest Warrants A. Background
When the Committee first considered amending the Criminal Rules to incorporate procedures for using advanced communication technology (ACT), we agreed to look at the issue broadly. Our initial undertaking concerned the rules governing preliminary arraignments and arraignments.1 After developing that proposal, the Committee agreed that other criminal procedures also could be improved and updated by expressly providing for the use of ACT. During the next phase of our consideration of ACT, the Committee considered that the arrest and search warrant procedures in Pennsylvania could be streamlined by including in the warrant rules provisions allowing the use of ACT to obtain a warrant.
Before considering a specific proposal for Pennsylvania, the Committee examined the warrant procedures in other jurisdictions, including the Federal courts, and found that there a few statutes or rules specifically providing for the use of ACT to obtain an arrest warrant or a search warrant,2 although few specifically prohibit its use. Our research did reveal that case law in several jurisdictions supports the use of ACT for obtaining warrants as long as the fundamental, constitutional requirements are satisfied and the spirit of the law relating to obtaining warrants is followed. See, e.g., U.S. v. Richardson, 943 F.2d 547 (5th Cir. 1991); State v. Evans, 822 P.2d 1198 (Or. Ct. App. 1991); State v. Myers, 815 P.2d 761 (Wash. 1991); State v. Lindsey, 473 N.W.2d 857 (Minn. 1991); People v. Snyder, 449 N.W.2d 703 (Ct. App. Mich. 1989).
In Pennsylvania, the Criminal Rules and the case law are silent concerning the use of technology for obtaining warrants. The members recognized, drawing on their own observations and experiences, that because of the stringent constitutional limitations and the procedural requirements in the Criminal Rules, law enforcement officers and issuing authorities are hesitant to use ACT without some express authorization, although we agreed that there did not appear to be any impediments to providing for the use of ACT to obtain and issue warrants, and that, with clearly enumerated procedures for the use of ACT, the process could be enhanced.
Once the Committee agreed that the Criminal Rules governing warrant procedures should be amended, we acknowledged that there are a sufficient number of ''warrant'' situations in which time and convenience are critically important, and agreed that when the equipment is available, using the new provisions should (1) reduce the amount of time it takes to go through the necessary steps to obtain a warrant, and (2) increase the convenience for an affiant to present the requisite paperwork to the issuing authority. In addition, the Committee recognized that proceeding with a warrant is favored over proceeding without a warrant, and expects that using ACT would reduce the number of warrantless arrests and seizures.
In view of our discussions concerning ACT and our research, the Committee agreed that the Criminal Rules should be amended to provide that, in the discretion of the issuing authority, arrest and search warrants could be obtained by using ACT. Accordingly, the Committee is proposing the amendment of Rules 119 (Requirements for Issuance) and 2003 (Requirements for Issuance), and the revision of Rules 121 (Duplicate and Alias Warrants of Arrest) and 122 (Execution of Arrest Warrant).
B. Discussion of Rule Changes
The Committee considered that, rather than incorporating ACT as a new rule in both Chapters 100 and 2000, the provisions should be placed into the existing rules to make it clear that these procedures are intended to be an alternative method to obtain a warrant. The Committee also recognized, however, that there would be situations in which the issuing authority would want the affiant to appear in person to request the warrant, rather than permit the use of ACT. In view of this, we agreed that the new procedures should provide the issuing authority with the discretion to use ACT, and expect that (1) ACT generally would be allowed in all cases, and (2) the issuing authority would invoke the discretion to not use the technology on a case by case basis.
1. Requirements for Issuance: Rules 119 and 2003
Rule 119 sets forth the requirements for the issuance of arrest warrants, and Rule 2003 sets forth the requirements for the issuance of search warrants. Agreeing that Rule 119 is intended to parallel Rule 2003, the Committee agreed that the arrest warrant and search warrant rules should continue to parallel one another. Accordingly, the Committee is proposing amendments to Rules 119 and 2003 to include similar provisions allowing for the use of advanced communication technology. A new paragraph (A) would provide that in the discretion of the issuing authority, an affiant may use a form of advanced communication technology to submit a complaint (Rule 119) or affidavit of probable cause (Rule 2003) to the issuing authority, and the issuing authority may use advanced communication technology to issue the warrant.
The Committee is also recommending that a new paragraph (C) be added that would require the affiant to communicate with issuing authority before proceeding by ACT so that the issuing authority will be aware that the request for the warrant is going to be transmitted imminently. The new provisions would also require that the issuing authority verify the affiant's identity, and administer an oath to the affiant.
Former paragraphs (a) and (b) would become new paragraphs (B) and (D) respectively, without modification. Finally, Rule 2003 would maintains its provision for searches conducted at nighttime as a new paragraph (E).
The Committee is also recommending several revisions to the Comments to Rules 119 and 2003 to: 1) make it clear that ACT is permitted to be used to obtain both an arrest and a search warrant; 2) explain that the probable cause requirement has not been altered; 3) provide examples of permissible verification methods under the rules relating to warrants; and 4) add a cross-reference to Rule 3.
2. Rules 121 (Duplicate and Alias Warrants of Arrest) and 122 (Execution of Arrest Warrants)
Rule 121 provides the procedures for issuing duplicate and alias warrants of arrest and Rule 123 provides the procedures for the execution of arrest warrants. The Committee is proposing that the Comments to both rules be revised to: 1) make it clear that advanced communication technology is allowed to be used for the issuance of duplicate and alias warrants; 2) explain that when warrant information is transmitted, the information does not have to be an exact copy of the warrant; 3) clarify that the rule does not modify the Rule 140(b) requirement that the issuing authority provide the defendant with an exact copy of the warrant at the time of the preliminary arraignment; and 4) provide a cross-reference to Rule 3 for the definition of ACT. In addition, the Committee is proposing that the Rule 121 Comment be revised to make it clear that advanced communication technology is permitted to be used to issue duplicate and alias arrest warrants.
[Pa.B. Doc. No. 99-1357. Filed for public inspection August 20, 1999, 9:00 a.m.] _______
1 The Court has pending proposed rule changes that would provide the procedures for conducting preliminary arraignments and arraignments using ACT. See 28 Pa.B. 3934 (August 15, 1998) for the Committee's explanatory Report.
2 See, e.g., Ann. Cal. Penal Code § 1526, C.S.R.A. § 16 - 1 - 106 (Colorado), M.C.L.A. § 780.651 (Michigan).
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