Rule 441. Procedure Following Arrest Without Warrant.
(A) When a defendant has been arrested without a warrant, the defendant shall be either released from custody pursuant to paragraph (B) or taken before the proper issuing authority under paragraph (C).
(B) When a defendant has been arrested without a warrant, the arresting officer shall promptly release the defendant from custody when the following conditions have been met:
(1) the defendant poses no threat of immediate physical harm to any other person or to himself or herself; and
(2) the arresting officer has reasonable grounds to believe that the defendant will appear as required.
A citation shall be issued to the defendant at the time of release and thereafter the case shall proceed in accordance with Rules 405—409 as if the proceedings had been instituted by issuing a citation to the defendant.
(C) When the defendant has not been released from custody under paragraph (B),
(1) the defendant shall be taken without unnecessary delay before the issuing authority when available pursuant to Rule 117 where a citation shall be filed against the defendant, and
(a) the defendant shall enter a plea.
(b) If the defendant pleads guilty, the issuing authority shall impose sentence. If the defendant pleads not guilty, the defendant shall be given an immediate trial unless:
(i) the Commonwealth is not ready to proceed, or the defendant requests a postponement or is not capable of proceeding, and in any of these circumstances, the issuing authority shall release the defendant on recognizance unless the issuing authority has reasonable grounds to believe that the defendant will not appear, in which case, the issuing authority may fix the amount of collateral to be deposited to ensure the defendant’s appearance on the new date and hour fixed for trial; or
(ii) the defendant’s criminal record must be ascertained before trial as specifically required by statute for purposes of grading the offense charged, in which event the issuing authority shall release the defendant on recognizance unless the issuing authority has reasonable grounds to believe that the defendant will not appear, in which case, the issuing authority may fix the amount of collateral to be deposited to ensure the defendant’s appearance on the new date and hour fixed for trial, which shall be after the issuing authority’s receipt of the required information.
(iii) In determining whether it is necessary to set collateral and what amount of collateral should be set, the issuing authority shall consider the factors listed in Rule 523. The amount of collateral shall not exceed the full amount of the fine and costs.
(iv) If collateral has been set, the issuing authority shall state in writing the reason(s) why any collateral other than release on recognizance has been set and the facts that support a determination that the defendant has the ability to pay monetary collateral.
(v) If collateral is set and the defendant does not post collateral, the defendant shall not be detained without a trial longer than 72 hours or the close of the next business day if the 72 hours expires on a non-business day.
(2) If the defendant is under 18 years of age and cannot be given an immediate trial, the issuing authority promptly shall notify the defendant and defendant’s parents, guardian, or other custodian of the date set for the summary trial, and shall release the defendant on his or her own recognizance.
Comment This rule was amended in 2005 to require the arresting police officer to promptly arrange for the defendant’s release if the two criteria set forth in paragraph (B) are met.
‘‘Reasonable grounds’’ as used in paragraph (B)(2) would include such things as concerns about the validity of the defendant’s address, the defendant’s prior contacts with the criminal justice system, and the police officer’s personal knowledge of the defendant.
Delay of trial under paragraph (C)(1)(b)(ii) is required by statutes such as 18 Pa.C.S. § 3929 (pretrial fingerprinting and record-ascertainment requirements). Although the defendant’s trial may be delayed under this paragraph, the requirement that the defendant be taken without unnecessary delay before the proper issuing authority remains unaffected. See also Rules 408, 413, and 423.
On the appearance or waiver of counsel, see Rules 121 and 122.
With regard to the ‘‘proper’’ issuing authority as used in these rules, see Rule 130.
For the procedure in court cases initiated by arrest without warrant, see Rule 519.
For the procedures in summary cases within the jurisdiction of the Philadelphia Municipal Court and the Philadelphia Municipal Court Traffic Division, see Chapter 10.
Concerning an issuing authority’s availability, see Rule 117 (Coverage: Issuing Warrants; Preliminary Arraignments and Summary Trials; and Setting and Accepting Bail).
When the police must detain a defendant pursuant to this rule, 61 P. S. § 1154 provides that the defendant may be housed for a period not to exceed 48 hours in ‘‘the borough and township lockups and county correctional institutions.’’
Official Note
Rule 71 adopted July 12, 1985, effective January 1, 1986; Comment revised September 23, 1985, effective January 1, 1986; January 1, 1986 effective dates extended to July 1, 1986; amended August 9, 1994, effective January 1, 1995; amended May 14, 1999, effective July 1, 1999; renumbered Rule 441 and amended March 1, 2000, effective April 1, 2001; amended August 7, 2003, effective July 1, 2004; amended June 30, 2005, effective August 1, 2006; Comment revised May 7, 2014, effective immediately; amended April 10, 2015, effective July 10, 2015.
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).
Final Report explaining the May 14, 1999 amendments to paragraph (C)(1) and the Comment published with the Court’s Order at 29 Pa.B. 2775 (May 29, 1999).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).
Final Report explaining the August 7, 2003 changes the Comment concerning defendants under the age of 18 published with the Court’s Order at 33 Pa.B. 4293 (August 30, 2003).
Final Report explaining the June 30, 2005 changes concerning release of defendant following arrest and procedures when defendant is not released published with the Court’s Order at 35 Pa.B. 3911 (July 16, 2005).
Final Report explaining the May 7, 2014 Comment revision changing the cross-reference to the Philadelphia Traffic Court to the Traffic Division of the Philadelphia Municipal Court published with the Court’s Order at 44 Pa.B. 3065 (May 24, 2014).
Final Report explaining the April 10, 2015 amendment concerning the setting of collateral pending summary trial published with the Court’s Order at 45 Pa.B. 2045 (April 25, 2015).
Source The provisions of this Rule 441 amended August 7, 2003, effective July 1, 2004, 33 Pa.B. 4289; amended June 30, 2005, effective August 1, 2006, 35 Pa.B. 3901; amended May 7, 2014, effective immediately, 44 Pa.B. 3056; amended April 10, 2015, effective July 10, 2015, 45 Pa.B. 2040. Immediately preceding text appears at serial pages (372123) to (372125).
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