THE COURTS

Title 234--RULES
OF CRIMINAL PROCEDURE

[234 PA. CODE CH. 2]

Order Amending Rules 203, 205, and 206; No. 333 Criminal Procedural Rules; Doc. No. 2

[35 Pa.B. 6087]

   The Criminal Procedural Rules Committee has prepared a Final Report explaining the October 19, 2005 changes to Rules of Criminal Procedure 203, 205, and 206. The changes, which will be effective February 1, 2006, provide procedures for anticipatory search warrants. The Final Report follows the Court's Order.

Order

Per Curiam:

   Now, this 19th day of October, 2005, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 35 Pa.B. 2861 (May 14, 2005), and a Final Report to be published with this Order:

   It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules of Criminal Procedure 203, 205, and 206 are amended in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective February 1, 2006.

Annex A

TITLE 234. RULES OF CRIMINAL PROCEDURE

CHAPTER 2. INVESTIGATIONS

PART A. Search Warrant

Rule 203. Requirements for Issuance.

*      *      *      *      *

   (F)  A search warrant may be issued in anticipation of a prospective event as long as the warrant is based upon an affidavit showing probable cause that at some future time, but not currently, certain evidence of a crime will be located at a specified place.

Comment

*      *      *      *      *

   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).

*      *      *      *      *

   Paragraph (F) was added to the rule in 2005 to provide for anticipatory search warrants. The rule incorporates the definition of anticipatory search warrants set forth in Commonwealth v. Glass, 562 Pa. 187, 754 A.2d 655 (2000).

   Official Note: Rule 2003 adopted March 28, 1973, effective for warrants issued 60 days hence; renumbered Rule 203 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; amended October 19, 2005, effective February 1, 2006.

Committee Explanatory Reports:

   Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).

*      *      *      *      *

   Final Report explaining the October 19, 2005 amendments regarding anticipatory search warrants published with the Court's Order at 35 Pa.B.         (November 5, 2005).

Rule 205. Contents of Search Warrant.

   Each search warrant shall be signed by the issuing authority and shall:

*      *      *      *      *

   (4)  direct that the search be executed either;

   (a)  within a specified period of time, not to exceed 2 days from the time of issuance, or;

   (b)  when the warrant is issued for a prospective event, only after the specified event has occurred;

*      *      *      *      *

Comment

   Paragraphs (2) and (3) are intended to proscribe general or exploratory searches by requiring that searches be directed only towards the specific items, persons, or places set forth in the warrant. Such warrants should, however, be read in a common sense fashion and should not be invalidated by hypertechnical interpretations. This may mean, for instance, that when an exact description of a particular item is not possible, a generic description may suffice. See Commonwealth v. Matthews, 446 Pa. 65, 69--74, 285 A.2d 510, 513-14 ([Pa.] 1971).

   Paragraph (4) is included pursuant to the Court's supervisory powers over judicial procedure to supplement Commonwealth v. [McCante] McCants, 450 Pa. 245, 299 A.2d 283 ([Pa.] 1973), holding that an unreasonable delay between the issuance and service of a search warrant jeopardizes its validity. Paragraph (4) sets an outer limit on reasonableness. A warrant could, in a particular case, grow stale in less than two days. If the issuing authority believes that only a particular period which is less than two days is reasonable, he or she must specify such period in the warrant.

   Paragraph (4)(b) provides for anticipatory search warrants. These types of warrants are defined in Commonwealth v. Glass, 562 Pa. 187, 754 A.2d 655 (2000), as ''a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.''

*      *      *      *      *

   Official Note: Rule 2005 adopted October 17, 1973, effective 60 days hence; amended November 9, 1984, effective January 2, 1985; amended September 3, 1993, effective January 1, 1994; renumbered Rule 205 and amended March 1, 2000, effective April 1, 2001; amend October 19, 2005, effective February 1, 2006.

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).

   Final Report explaining the October 19, 2005 amendments to paragraph (4) and the Comment published with the Court's Order at 35 Pa.B. 6088 (November 5, 2005).

Rule 206. Contents of Application for Search Warrant.

   Each application for a search warrant shall be supported by written affidavit(s) signed and sworn to or affirmed before an issuing authority, which affidavit(s) shall:

*      *      *      *      *

   (6)  set forth specifically the facts and circumstances which form the basis for the affiant's conclusion that there is probable cause to believe that the items or property identified are evidence or the fruit of a crime, or are contraband, or are or are expected to be otherwise unlawfully possessed or subject to seizure, and that these items or property are or are expected to be located on the particular person or at the particular place described;

*      *      *      *      *

Comment

*      *      *      *      *

   While this rule continues to require written affidavits, the form of affidavit was deleted in 1984 because it is no longer necessary to control the specific form of written affidavit by rule.

   The 2005 amendments to paragraph (6) recognize anticipatory search warrants. To satisfy the requirements of paragraph (6) when the warrant being requested is for a prospective event, the application for the search warrant also must include a statement explaining how the affiant knows that the items to be seized on a later occasion will be at the place specified. See Commonwealth v. Coleman, 574 Pa. 261, 830 A.2d 554 (2003), and Commonwealth v. Glass, 562 Pa. 187, 754 A.2d 655 (2000).

*      *      *      *      *

   Official Note: Previous Rule 2006 adopted October 17, 1973, effective 60 days hence; rescinded November 9, 1984, effective January 2, 1985. Present Rule 2006 adopted November 9, 1984, effective January 2, 1985; amended September 3, 1993, effective January 1, 1994; renumbered Rule 206 and amended March 1, 2000, effective April 1, 2001; amended October 19, 2005, effective February 1, 2006.

Committee Explanatory Reports:

*      *      *      *      *

   Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court's Order at 30 Pa.B. [1477] 1478 (March 18, 2000).

   Final Report explaining the October 19, 2005 amendments to paragraph (6) and the Comment published with the Court's Order at 35 Pa.B. 6088 (November 5, 2005).

FINAL REPORT¹

Amendments to Pa.Rs.Crim.P. 203, 205, and 206

Anticipatory Search Warrants

   On October 19, 2005, effective February 1, 2006, upon the recommendation of the Criminal Procedural Rules Committee, the Court amended Rules 203 (Requirements for Issuance), 205 (Contents of Search Warrant), and 206 (Contents of Application for Search Warrant) to provide procedures for anticipatory search warrants.

   In response to Commonwealth v. Glass, 562 Pa. 187, 754 A.2d 655 (2000), and Commonwealth v. Coleman, 574 Pa. 261, 830 A.2d 554 (2003) in which the Court acknowledges the validity of anticipatory search warrants² , the Committee reviewed the search warrant rules, Part A (Search Warrants) of Chapter 2 (Investigations), to determine whether the rules required amendment to accommodate anticipatory search warrants.

   As defined in Glass, an anticipatory search warrant is ''a warrant based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of crime will be located at a specified place.'' Coleman provided further guidance concerning, inter alia, the requirements that (1) the execution of the warrant be explicitly conditioned upon the occurrence of a triggering event and (2) at the time of issuance, there be a fair probability that the event will actually occur.

   The Committee, after reviewing Glass and Coleman and the search warrant rules, agreed the search warrant rules, in particular Rules 203, 205, and 206, in their current form could be read to prohibit anticipatory search warrants and thus would create confusion for members of the bench and bar and minor judiciary. Accordingly, the Committee recommended that Rules 203, 205, and 206 be amended to accommodate anticipatory search warrants as recognized in Glass and its progeny.

   Rule 203 (Requirements for Issuance) is amended by the addition of a new paragraph (F) that provides the general authority for anticipatory search warrants, based on the definition contained in Glass. Proposed new paragraph (F) states:

A search warrant may be issued in anticipation of a prospective event as long as the warrant is based upon an affidavit showing probable cause that at some future time, but not currently, certain evidence of a crime will be located at a specified place.

   A reference to Glass is added to the Comment to Rule 203.

   Paragraph (4)(b) of Rule 205 is amended to make it clear that, when a warrant is issued for a prospective event, it may be executed only after the specified event has occurred. Thus, officers executing the warrant would not need further approval from or contact with the issuing authority in order to execute the warrant. The officers' decision to execute the warrant could be challenged by suppression motion. A citation to the Glass definition of ''anticipatory search warrant'' is also added to the Comment to Rule 205.

   Paragraph (6) of Rule 206 is amended to include prospective events as a basis for the facts and circumstances that form the basis of the probable cause conclusion. The Comment is also revised to refer to Glass and Coleman, adding further refinement to the probable cause determination regarding anticipatory search warrants.

[Pa.B. Doc. No. 05-2011. Filed for public inspection November 4, 2005, 9:00 a.m.]

_______

¹  The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.

²  Pursuant to Glass, anticipatory search warrants are consistent with constitutional protections against unreasonable searches and seizures so long as the issuing authority is satisfied that the warrant will not be executed prematurely.

---

No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.

---