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In re Order Amending Rules Pennsylvania Rules of Criminal Procedure

Supreme Court of Pennsylvania

November 9, 2017

IN RE: ORDER AMENDING RULES THE PENNSYLVANIA RULES OF CRIMINAL PROCEDURE

         CRIMINAL PROCEDURAL RULES

          ORDER

          PER CURIAM.

         AND NOW, this 9th day of November, 2017, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published before adoption at 47 Pa.B. 182 (January 14, 2017), 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 the amendment to Pennsylvania Rules of Criminal Procedure 203 and 513 are adopted, in the attached form.

         This ORDER shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective January 1, 2018.

         Additions to the rules are shown in bold and are underlined.

         Deletions from the rules are shown in bold and brackets.

         RULE 203. 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.

         (B) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority in person or using advanced communication technology. The issuing authority, in determining whether probable cause has been established, may not consider any evidence outside the affidavits.

         (C) 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 in person, by telephone, or by any device which [, at a minimum, ] allows for simultaneous audio-visual communication. During the communication, the issuing authority shall verify the identity of the affiant, and orally administer an oath to the affiant. In any telephonic communication, if the issuing authority has a concern regarding the identity of the affiant, the issuing authority may require the affiant to communicate by a device allowing for two-way simultaneous audio-visual communication or may require the affiant to appear in person.

         (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 (B).

         (E) No search warrant shall authorize a nighttime search unless the affidavits show reasonable cause for such nighttime search.

         (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.

         (G) When a search warrant is issued, the issuing authority shall provide the original search warrant to the affiant and the issuing authority shall retain a contemporaneously prepared copy.

COMMENT: Paragraph (A) recognizes that an issuing authority either 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.
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 103. The language "sworn to before the issuing authority" contemplates, when advanced communication technology is used, that the affiant would not be in the physical presence of the issuing authority. See paragraph (C).
Paragraph (D) changes the procedure discussed in Commonwealth v. Crawley, [209 Pa. Super. 70');">209 Pa. Super. 70, ] 223 A.2d 885 (Pa. Super. 1966), aff'd per curiam [432 Pa. 627');">432 Pa. 627, ] 247 A.2d 226 (Pa. 1968). See Commonwealth v. Milliken, [450 Pa. 310');">450 Pa. 310, ] 300 A.2d 78 (Pa. 1973).
The requirement in paragraph (E) 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, when permitted by the issuing authority, may use advanced communication technology as defined in Rule 103.
When advanced communication technology is used, the issuing authority is required by this rule to (1) determine that the evidence contained in the affidavit(s) establishes probable cause, and (2) verify the identity of the affiant.
[The "visual" requirement in paragraph (C) must allow, at a minimum, the issuing authority to see the affiant at the time the oath is administered and the information received.]
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.
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');">562 Pa. 187, ] 754 A.2d 655 (Pa. 2000).
Paragraph (G) was added to clarify who must retain possession of the original of the search warrant. When the search warrant is issued using advanced communication technology, the version delivered to the police officer is considered the original for purposes of this rule.
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; amended October 22, 2013, effective January 1, 2014 [.] ; amended November 9, 2017, effective January 1, 2018.
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COMMITTEE EXPLANATORY REPORTS:

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