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In re Return of Seized Property of Lackawanna County

Supreme Court of Pennsylvania

July 17, 2019

IN RE: RETURN OF SEIZED PROPERTY OF LACKAWANNA COUNTY PETITION OF: COMMONWEALTH OF PENNSYLVANIA

          ARGUED: December 5, 2018

          Appeal from the Order of the Lackawanna County Court of Common Pleas at No. 17 CV 5927 dated May 11, 2018

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          DOUGHERTY JUSTICE

         This appeal concerns a motion for return of property filed by several Lackawanna County governmental entities ("County") relative to materials seized by the Office of Attorney General ("OAG"). The OAG seized the County's property pursuant to search warrants issued by the Supervising Judge of the 41st Statewide Investigating Grand Jury. We consider whether the County's motion for return was properly filed in the Lackawanna County Court of Common Pleas, and whether it must be adjudicated by the Supervising Judge. We also consider whether the Supervising Judge was empowered to issue the underlying search warrants.

         I. Background

         As the issues in this case relate to the 41st Statewide Investigating Grand Jury, we begin by providing some brief context regarding its formation. On November 30, 2016, then-Pennsylvania Attorney General Bruce Beemer petitioned this Court, pursuant to the Investigating Grand Jury Act, 42 Pa.C.S. §§4541-4553, for an order directing the convening of a multicounty investigating grand jury having statewide jurisdiction to investigate organized crime or public corruption or both. See In re Application of Beemer, 174 MM 2016 (Nov. 30, 2016). This Court, through an order signed by Chief Justice Saylor, [1] granted the Attorney General's application on December 9, 2016, as required by the Act. See 42 Pa.C.S. §4544(a) (where Attorney General's application for multicounty grand jury satisfies relevant statutory criteria, the Court shall issue order granting application within ten days).

         Consistent with the dictates of 42 Pa.C.S §4544(b), the Court's order included an array of content typical of such orders. For example, it designated the location of the 41st Statewide Investigating Grand Jury in Montgomery County, and specified the manner in which the jurors were to be selected. The order also appointed a Supervising Judge, the Honorable Anthony A. Sarcione, Judge of the Court of Common Pleas for the 15th Judicial District, Chester County, and instructed that "[a]ll applications and motions relating to the work of the [41st] Statewide Investigating Grand Jury - including motions for disclosure of grand jury transcripts and evidence - shall be presented to the Supervising Judge." Order, 12/9/2016, at 1.[2] Further, pursuant to Section 4544(b)(2), the order provided that "[w]ith respect to investigations, presentments, reports, and all other proper activities of the [41st] Statewide Investigating Grand Jury, Judge Sarcione, as Supervising Judge, shall have jurisdiction over all counties throughout the Commonwealth of Pennsylvania." Id. at 1-2. And finally, the order directed Judge Sarcione to maintain control of transcripts, evidence, and matters occurring before the grand jury as provided by Pa.R.Crim.P. 229 and 42 Pa.C.S. §4549. Id. at 3.

         After the 41st Statewide Investigating Grand Jury was empaneled and an investigation was ongoing, an OAG Special Agent and a Pennsylvania State Trooper applied to Judge Sarcione for four warrants to search and seize certain property belonging to the County. See Applications for Search Warrants, Reproduced Record ("R.R.") at 67a, 72a, 77a, and 82a. On September 20, 2017 and September 21, 2017, Judge Sarcione approved the warrants. Id. Thereafter, the OAG, in conjunction with the Pennsylvania State Police, executed the search warrants upon the Lackawanna County Prison, the Lackawanna County Community Corrections Center, the Lackawanna County Administration Building, and the Lackawanna County Center for Public Safety.[3] The OAG seized various materials pursuant to the warrants, including computers, hard drives, email servers, and other files, documents, and records. See Receipts/Inventory of Seized Property, R.R. at 84a-117a.

         On November 9, 2017, the County filed a motion for return of property pursuant to Pa.R.Crim.P. 588.[4] Notably, the County filed its motion in the Lackawanna County Court of Common Pleas, which comprises the 45th Judicial District. The matter was assigned to the Honorable John Braxton, Senior Judge of the Court of Common Pleas for the 1st Judicial District, Philadelphia County.[5]

         In its motion, the County advanced a threefold argument to support its claim of entitlement to lawful possession of the seized materials. First, the County argued the underlying search warrants were unconstitutionally general and overbroad. See Motion for Return of Property, R.R. at 50a-53a. Second, it asserted the seizing of judicial and other governmental officials' property infringed upon various privacy interests and legal privileges. See id. at 54a-59a. Third, it claimed the search warrants were invalid under Pa.R.Crim.P. 200. See id. at 60a-62a.

         With respect to this final claim, the County explained a "search warrant may be issued by any issuing authority within the judicial district wherein is located either the person or place to be searched." Id. at 60a, quoting Pa.R.Crim.P. 200. The County noted the places to be searched were all located in Lackawanna County, i.e., in the 45th Judicial District, yet Judge Sarcione identified his title on the search warrants as a Court of Common Pleas Judge in the 15th Judicial District. According to the County, "[a]s a member of the 15th Judicial District - not the 45th - Judge Sarcione did not have authority to issue the search warrants under Pa.R.Crim.P. 200 for items to be seized in Lackawanna County." Id. at 61a.

         On November 13, 2017, the OAG filed a response to the County's motion. Without confirming or denying the existence of a grand jury investigation due to secrecy concerns, the OAG nevertheless challenged the lower court's jurisdiction to hear the motion for return. See Response to Motion for Return, R.R. at 126a-127a.[6] In support, the OAG pointed to this Court's order appointing Judge Sarcione as Supervising Judge and, in particular, the order's instruction that "[a]ll applications and motions relating to the work of the [41st] Statewide Investigating Grand Jury . . . shall be presented to the Supervising Judge." Id. at 127a, quoting Order, 12/9/2016 at 1. In the OAG's view, the order supplied Judge Sarcione with "exclusive jurisdiction" over the County's motion for return because the motion challenged search warrants issued in connection with an investigation of the 41st Statewide Investigating Grand Jury. Id.

         Two days later the parties appeared for a hearing before the lower court. The County contested the notion Judge Sarcione had jurisdiction over the motion, arguing there is "no authority for a civil matter or a return of property [motion] to be heard by a grand jury." N.T. 11/15/2017 at 5; see also id. (contending a motion for return of property "does not belong in a grand jury proceeding"). The County further challenged Judge Sarcione's authority to issue the underlying search warrants, on the basis "there is nothing in the Grand Jury Act that authorizes search warrants." Id. at 8. In response, the OAG maintained the relevant source of authority as to both matters was this Court's December counties throughout the Commonwealth" and authorized him "to handle any ancillary matters that may come up throughout the course of the grand jury conducting [its] business." Id. at 6. As the OAG believed the motion for return to be ancillary to the work of the 41st Statewide Investigating Grand Jury, it requested the "entire matter be sealed and transferred to Judge Sarcione." Id. at 7. Following oral argument, the court held the matter under advisement.[7]

         On May 11, 2018, the lower court issued an opinion and order, ostensibly limited to the jurisdictional question. See Trial Ct. Op., 5/11/2018, at 1 ("This Opinion and Order will solely address proper jurisdiction of this matter and will not address the substantive Motion on the merits."). In sum, the court determined the Lackawanna County Court of Common Pleas, rather than the Supervising Judge of the 41st Statewide Investigating Grand Jury, had jurisdiction to adjudicate the merits of the County's motion for return of property. Id. at 9. In reaching this conclusion, the court reasoned Rule 588 controlled, in that it "explicitly states that a motion for return of property 'shall be filed in the [c]ourt of [c]ommon [p]leas for the judicial district in which the property was seized." Id. at 8, quoting Pa.R.Crim.P. 588(A). As additional support, the court cited In re Seized Property of Bartholomew, 26 Pa.D & C.4th 122 (C.P. Lehigh 1995), wherein a common pleas court judge adjudicated a motion for return of property even though the property had been seized pursuant to a search warrant issued by a statewide investigating grand jury. The lower court recognized "the issue of proper jurisdiction was not discussed" in the Bartholomew case, but nevertheless found that nonbinding authority "directly on point" and "persuasive." Trial Ct. Op., 5/11/2018, at 4, 9.[8] Finally, regarding the underlying search warrants issued by Judge Sarcione, the court remarked the Investigating Grand Jury Act "makes no mention of search warrants" and Pa.R.Crim.P. 200 "specifically indicates" search warrants must be issued by an issuing authority within the relevant judicial district. Id. at 9.

         On May 21, 2018, the OAG filed an application to reconsider and to certify the court's order for immediate appeal pursuant to 42 Pa.C.S. §702(b). Simultaneously, the OAG filed in this Court a petition for permission to appeal or, in the alternative, a petition for review. The County opposed both filings.

         On June 20, 2018, the lower court denied the OAG's application insofar as it sought reconsideration, but granted the OAG's request to certify the order for immediate appeal. Thereafter, this Court directed that the matter be determined upon full appellate briefing and oral argument.[9]

         The OAG presents the following two issues for this Court's review:

1. Did the lower court err in ruling it had the authority to address Lackawanna County's motion for return of property concerning property seized pursuant to warrants issued by the supervising judge of the [41st] Statewide Investigating Grand Jury, when the Supervising Judge had exclusive authority to hear Lackawanna County's Motion?
2. Whether, as a preliminary matter, the Supervising Judge of the [41st] Statewide Investigating Grand Jury had the authority to issue the search and seizure warrants executed in this matter, when the Supervising Judge has statewide authority with respect to the grand jury investigations he oversees, including the investigation associated with the warrants in this case?

         OAG's Brief at 4. We address these legal questions on a plenary basis, and to the extent we must engage in statutory interpretation and analysis of our own procedural rules, we apply conventional interpretative principles. See In re Fortieth Statewide Investigating Grand Jury, 191 A.3d 750, 756 (Pa. 2018).

         II. Arguments of the Parties

         The OAG maintains Judge Sarcione, in his capacity as Supervising Judge, has exclusive authority to address the County's motion for return because it relates to property seized through search warrants issued in connection with an investigation of the 41st Statewide Investigating Grand Jury. See OAG's Brief at 14. As the OAG sees it, the lower court erroneously reached the opposite conclusion because it failed to "understand how supervising judges' authority conforms with the various statutes, rules, and orders involved in the underlying legal actions here." Id.

         In this regard, the OAG begins by outlining what it believes to be the source of Judge Sarcione's authority to adjudicate the motion for return of property. It primarily points to this Court's December 9, 2016 order appointing Judge Sarcione as Supervising Judge - specifically, the order's instruction that "'[a]ll applications and motions relating to the work of the [41st] Statewide Investigating Grand Jury . . . shall be presented to the Supervising Judge.'" OAG's Brief at 21, quoting Order, 12/9/2016, at 1. The OAG explains the County's motion for return, like the search warrants upon which the motion is premised, relate to the work of the 41st Statewide Investigating Grand Jury. As such, the OAG concludes this Court's own directive requires that the motion "'shall be presented to the Supervising Judge.'" Id. at 22, quoting Order, 12/9/2016, at 1.

         The OAG proceeds to address the lower court's treatment of Pa.R.Crim.P. 588. It argues the lower court wrongly concluded Rule 588 prevents Judge Sarcione from addressing the motion for return since, in its view, the Rule does nothing more than dictate venue. See OAG's Brief at 24-27. Thus, the OAG explains, while on its face the Rule requires that a motion for return shall be filed in the court of common pleas for the judicial district in which the property was seized - i.e., in Lackawanna County - "this does not prevent the Supervising Judge from hearing the motion or from it being 'presented to the Supervising Judge.'" Id. at 22, quoting Order, 12/9/2016, at 1. The OAG insists there is "no conflict" between Rule 588(A) and this Court's directive that all motions relating to the work of the 41st Statewide Investigating Grand Jury shall be presented to Judge Sarcione. Id.

         From that premise the OAG prescribes two mechanisms that it believes would effectuate the intent of this Court's order while simultaneously adhering to Rule 588(A). First, it argues Judge Sarcione is authorized to hear the County's motion for return as filed in Lackawanna County. Id. at 23. This is permissible, the OAG contends, because this Court's order supposedly granted Judge Sarcione statewide jurisdiction with regard to any matters concerning the work of the 41st Statewide Investigating Grand Jury and he therefore "has the same jurisdictional authority over Lackawanna County as any judge of the 45th Judicial District[.]" Id. Alternatively, the OAG posits there is "no legal obstacle preventing the matter from being [ ] transferred to the docket associated with the underlying grand jury investigation." Id. at 24. It notes that proceeding in this manner would be consistent with other Pennsylvania Rules of Procedure that dictate a default venue but also permit transfer to a different venue when the law and circumstances of a case warrant. See id. at 24-27, citing Pa.R.Crim.P. 130 and Pa.R.Civ.P. 1006. In short, the OAG asserts Rule 588(A) "merely defaults to the reasonable position that a motion involving the return of property should be filed in the Common Pleas court where the property is located[, ]" but it "does not prevent transfer of the matter to some other forum when such transfer is legally warranted." Id. at 26-27.

         Having concluded Judge Sarcione possesses exclusive jurisdiction to address the motion for return of property and that Rule 588(A) does not operate to prevent or constrict that authority, the OAG continues that the lower court's contrary decision undermines the fundamental principles associated with the proper functioning of statewide investigating grand juries. See id. at 27-30. Relying on this Court's longstanding recognition that "[t]he secrecy of grand jury proceedings is indispensable to the effective functioning of a grand jury[, ]" and this compelling need for secrecy "call[s] for a strong judicial hand in supervising the proceedings[, ]" In re Dauphin County Fourth Investigating Grand Jury, 19 A.3d 491, 502-03 (Pa. 2011) (internal quotations and citations omitted), the OAG claims these principles will be frustrated if Judge Sarcione is prevented from adjudicating the motion for return. See OAG's Brief at 31. This is so, the OAG argues, because it will be limited if not entirely barred from effectively responding to the substance of the County's motion, as it implicates protected grand jury material. See OAG's Brief at 31. Although the OAG concedes it may seek a disclosure order from Judge Sarcione to discuss some of the otherwise-secret matters with the lower court and the County, it stresses that "given the need to ensure an [e]ffective ongoing investigation, which may be targeting parties to the underlying motion or their affiliates, any disclosure may need to be limited." Id. The OAG submits the lower court's decision creates "a cumbersome process ripe for the unwarranted divulgence of secret information[, ]" and it deems that burdensome process "wholly unnecessary . . . and antithetical to the fundamental principles governing grand jury practice." Id. at 31-32.

         Finally, the OAG proffers that there is a limit to a supervising judge's authority to entertain a motion for return of property relating to a search warrant issued in connection with a grand jury investigation. See id. at 32-33. Specifically, it suggests this rule applies only when there is an ongoing grand jury investigation or where grand jury secrecy concerns are present; absent these conditions, the OAG sees no reason why a motion for return of property could not be heard by a non-grand jury judge. See id.

         Turning next to the issue of the search warrants, the OAG again identifies this Court's order appointing Judge Sarcione as Supervising Judge as the authority permitting him to issue search warrants statewide. It argues the order, which tracks the language of 42 Pa.C.S. §4544(b)(2), states Judge Sarcione "(1) shall have jurisdiction over all counties throughout the Commonwealth, (2) including "'[w]ith respect to investigations, presentments, reports, and all other proper activities of [the Grand Jury].'" OAG's Brief at 35, quoting 42 Pa.C.S. §4544(b)(2) (emphasis supplied by the OAG). Thus, according to the OAG, Judge Sarcione had statewide jurisdiction with respect to any investigative activity of the 41st Statewide Investigating Grand Jury. See id.

         Working from that assumption, the OAG argues that "[be]cause Judge Sarcione had explicit statewide jurisdiction over all the Grand Jury's investigations, he was an 'issuing authority' in Lackawanna County" as understood by Pa.R.Crim.P. 200. See id. at 36, citing Pa.R.Crim.P. 200, cmt. ("[a]ny judicial officer who is authorized to issue a search warrant and who issues a warrant is considered an 'issuing authority' for purposes of this rule"). In support of its position an "issuing authority" under Rule 200 is not limited to judicial officers whose commissions are linked to the judicial district where the property or person to be searched or seized is located, the OAG points to other examples where issuing authorities have been empowered to authorize search warrants in judicial districts where they do not normally sit. See id. at 36-37 (comment to Rule 200 acknowledges power of appellate court judges and justices to issue search warrants anywhere in Pennsylvania); id. at 37-39 (discussing collaborative agreements between judicial districts which permit visiting active judges and district justices to issue search warrants in judicial districts outside the one in which they sit). These examples, the OAG asserts, prove there is "nothing remarkable" about judges issuing search warrants outside their own judicial district, "so long as their authority [to do so] is otherwise legally authorized." Id. at 37. As described, the OAG believes this Court's order and 42 Pa.C.S. §4544(b)(2) provided Judge Sarcione with such legal authority, and it consequently faults the lower court to the extent it agreed with the County that Rule 200 prohibited Judge Sarcione from issuing the underlying search warrants.

         The OAG also challenges the County's argument below that Judge Sarcione could not issue the search warrants on the basis that, under the Investigating Grand Jury Act, search warrants are not identified as an investigative resource of the grand jury and the issuance of search warrants is not mentioned as a power of the grand jury. See OAG's Brief at 41, citing 42 Pa.C.S. §4542 (investigative resources of the grand jury) and 42 Pa.C.S. §4548(a) (powers of investigating grand jury). As the OAG puts it, the County's argument is "fundamentally flawed" because it misunderstands the nature and purpose of investigating grand juries. Id. On this point, the OAG explains the powers of an investigating grand jury delineated in the Investigating Grand Jury Act "are in addition to the investigative resources and powers otherwise available to law enforcement in a criminal investigation." Id. (emphasis in original); see also id. at 42 ("the investigative resources of the grand jury set forth the legal mechanisms which enable grand juries to gather potentially valuable evidence that may be otherwise inaccessible to law enforcement absent the power of a grand jury to acquire it"). The OAG asserts these additional resources advance the core purpose of the Investigating Grand Jury Act by enabling the Commonwealth to investigate and prosecute crimes which may otherwise go undetected; they do not, however, circumscribe the ordinary investigative tools and techniques that law enforcement may employ in the course of a criminal investigation. See id. at 42. In sum, the OAG argues search warrants are just one of many ordinary investigative tools available to law enforcement in a criminal investigation, and nothing in the Investigating Grand Jury Act precludes their use to further a grand jury investigation. See id. at 42-43.

         The County quite naturally disputes the OAG's position on both issues. Regarding who may properly decide the motion for return of property, the County argues this issue is "squarely and completely resolved" by Rule 588(A), because it directs that motions for return shall be filed where the property was seized. County's Brief at 15-16. The County submits there is nothing in this Court's order appointing Judge Sarcione as Supervising Judge, or in the Investigating Grand Jury Act, that creates an exception to the procedure outlined in Rule 588(A). See id. at 17.

         On a more foundational level, the County challenges the OAG's interpretation of the powers granted to Judge Sarcione. While the County acknowledges this Court's order conferred upon Judge Sarcione statewide jurisdiction, it argues this jurisdiction extends only to "investigations, presentments, reports, and all other proper activities of said investigating multicounty grand jury." Id. at 17, quoting 42 Pa.C.S. §4544(b)(2) (emphasis supplied by the County). In the County's view, a motion for return of property "cannot in any way be deemed a 'proper activity' of an investigating grand jury." Id. In a similar way, the County contests the OAG's understanding of the separate directive in this Court's order that all applications and motions relating to the work of the 41st Statewide Investigating Grand Jury shall be presented to Judge Sarcione. According to the County, its motion for return "does not reference or implicate grand jury testimony or any proceeding before the grand jury and therefore does not relate to 'the work' of the grand jury." Id. at 18.

         As for the OAG's suggestion that transferring the motion for return of property from Lackawanna County to Judge Sarcione would comply with both this Court's order and Rule 588(A), the County argues that employing such a procedure would be inappropriate for several reasons. For one thing, the County claims this procedure, which amounts to a request for change of venue, is waived because the OAG never requested a change of venue in the lower court. See id. at 18-19. The County argues, even if the OAG had not waived this claim, the Pennsylvania Rules of Procedure cited by the OAG - including Pa.R.Crim.P. 130 and Pa.R.Civ.P. 1006 - "do not apply and are not satisfied here." Id. at 19. From the County's perspective, the OAG failed to develop a factual record necessary to satisfy any standard for a change of venue, and thus there is no support in the record for such a change. See id. at 19-20.

         Finally, to the extent the OAG invokes grand jury secrecy as support for its position that Judge Sarcione is empowered to address the motion for return of property, the County submits this is a red herring since the County's motion "does not address or implicate any secret grand jury matters." Id. at 20. The County submits the execution of the warrants was a "very public event that attracted wide attention and publicity[, ]" and it generally avers "there is nothing secret about the events that are the subject of the motion for return of property." Id. at 20-21. Moreover, the County continues, the motion for return advances facial and threshold legal challenges to the seizures "that do not implicate or require consideration of any matters that occurred before the grand jury." Id. at 21. The County reasons that because the OAG has not substantiated its asserted need for secrecy, "it can only be concluded that secrecy is not a legitimate basis to reassign the motion for return of property." Id. at 22.

         Moving to the second issue concerning Judge Sarcione's authority to issue the underlying search warrants, the County cites Pa.R.Crim.P. 200 as dispositive. The County interprets Rule 200 as endowing a judge with authority to issue search warrants only in the locality from which he or she was elected. See id. at 23. In this case, since Judge Sarcione was elected in Chester County, the County argues it necessarily follows that he lacked authority to issue warrants in Lackawanna County. See id. Furthermore, the County rejects the OAG's attempt to analogize Judge Sarcione's powers as Supervising Judge to those of appellate judges, who undoubtedly may "issue search warrants anywhere within the state." Pa.R.Crim.P. 200, cmt. The County argues the statewide jurisdiction afforded to appellate judges is easily distinguishable, as they are elected to statewide office, whereas Judge Sarcione was not. See County's Brief at 26 n.10. As well, the County summarily discards the OAG's reference to collaborative arrangements between counties which permit visiting judges to exercise the same power and authority as judges in the assigned district, because Lackawanna County is not party to any such agreement. See id. at 26.

         The County finally dismisses the OAG's argument the Investigating Grand Jury Act and this Court's order appointing Judge Sarcione as Supervising Judge conferred upon him the power to issue search warrants coextensive with the jurisdiction of the 41st Statewide Investigating Grand Jury. As the County explains, the Investigating Grand Jury Act provides the investigating resources of the grand jury "shall include but not be limited to the power of [ ] subpoena, the power to obtain the initiation of civil and criminal contempt proceedings, and every investigative power of any grand jury of the Commonwealth." Id. at 24, quoting 42 Pa.C.S. §4548(a) (emphasis supplied by the County). See also 42 Pa.C.S. §4542 (describing the investigative resources of the grand jury). The County asserts that, since grand juries have no statutory authority to issue search warrants, the Investigating Grand Jury Act "does not trump or supplant Rule 200." Id. Similarly, the County argues that even though Section 4544(b)(2) and this Court's order granted Judge Sarcione statewide jurisdiction over all "proper activities" of the grand jury, the issuance of search warrants is not a "proper activity" of a grand jury and, consequently, "this section does nothing to enlarge the scope of authority conferred by Rule 200." Id. at 24-25. For these reasons, the County deems irrelevant the OAG's description of search warrants as ordinary investigative tools that may be used in addition to the express statutory powers conferred to investigating grand juries. See id. at 25. Whether this is true "changes nothing[, ]" the County concludes, because Judge Sarcione "had no power under Rule 200 or any other rule or statute to issue a warrant in any other county." Id.[10]

         III. ...


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