Opinion
553
05-02-2024
IN RE:ORDER AMENDING RULES 201, 205, 206, 208, 209, 211, 540, AND 1003 OF THE PENNSYLVANIA RULES OF CRIMINAL PROCEDURE
CRIMINAL PROCEDURAL RULES DOCKET
ORDER
PER CURIAM
AND NOW, this 2nd day of May, 2024, upon the recommendation of the Criminal Procedural Rules Committee; the proposal having been published for public comment at 49 Pa.B. 1357 (March 23, 2019):
It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules 201, 205, 206, 208, 209, 211, 540, and 1003 of the Pennsylvania Rules of Criminal Procedure are amended in the attached form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective October 1, 2024.
ADOPTION REPORT
Amendment of Pa.R.Crim.P. 201, 205, 206, 208, 209, 211, 540, and 1003
On May 2, 2024, the Supreme Court amended Pennsylvania Rules of Criminal Procedure 201, 205, 206, 208, 209, 211, 540, and 1003. The Criminal Procedural Rules Committee has prepared this Adoption Report describing the rulemaking process. An Adoption Report should not be confused with Comments to the rules. See Pa.R.J.A. 103, cmt. The statements contained herein are those of the Committee, not the Court.
Stylistic amendments have also been made to conform to the Supreme Court of Pennsylvania Style and Rulemaking Guide for Procedural and Evidentiary Rules.
Background
Prompted by the Court's opinion in the companion cases of Commonwealth v. Romero and Commonwealth v. Castro, 183 A.3d 364 (Pa. 2018) (hereinafter "Romero and Castro"), the Committee began examining the manner in which an arrest warrant is used to gain access to a residence or other premises in an attempt to apprehend the subject of the warrant. The Committee concluded that the extent to which the police may search a residence pursuant to an arrest warrant and the manner in which such a search is adjudicated is primarily a substantive issue and, as demonstrated in Romero and Castro, this substantive law is still being developed.
However, in considering these issues, the Committee became concerned that Rule 201 (Purpose of Warrant) could cause confusion as "persons" are not identified in the rule as proper subjects of a search warrant. As a result, law enforcement, reading Rule 201 as not governing the issuance of a search warrant for a person, might conclude that an arrest warrant is sufficient regardless of where the subject of the warrant is to be located, even when intending to search a premises that is not the residence of the subject of the arrest warrant. Under such circumstances, the search would be conducted without a judge having first determined that there was probable cause for the search. Additionally, because the rule provides for the issuance of a warrant that permits law enforcement "to search" and "to seize," the Committee was concerned that the term "seize" would suggest that a search warrant could replace the need for an arrest warrant. To address these concerns, the following amendments have been adopted.
Amendments
Rule 201 has been amended to add a subdivision (d). This subdivision states that the search for and seizure of a person can be authorized by a search warrant if that person is also the subject of either a bench or arrest warrant. The Comment to Rule 201 has been revised to state specifically that a search warrant alone is insufficient; a bench or arrest warrant must also be issued.
The proposed amendment of Rule 201 was published for comment in March of 2019. See 49 Pa.B. 1357 (March 23, 2019). Two responses to the publication were received. One response questioned the description of the holding in the Romero and Castro cases contained in the Publication Report. As this did not implicate the proposed rule change itself, the Committee made no change to the proposal.
The other comment suggested that other rules might need to be amended in light of the proposed provision that would permit a person to be the subject of a search warrant. The Committee concurred that the terminology of several rules should be broadened to incorporate this concept. The Committee identified Rules 205 (Contents of Search Warrant), 206 (Contents of Application for Search Warrant), and 208 (Copy of Warrant; Receipt for Seized Property) as warranting amendment. Those rules have been amended to specifically incorporate a person as a proper subject of a search warrant. Additionally, corollary amendments have been made to Rules 209, 211, 540, and 1003.
Additionally, the proposed subdivision published for comment would have also provided for the issuance of a search warrant to search for "a person for whom there is probable cause to believe is a victim of a crime and for whom there is no other means of access." However, concerns were raised post-publication that this proposed subdivision might permit the issuance of a search warrant to gain access to a victim of any crime, even a lesser one, or result in the issuance of a warrant to gain access to a victim who is merely declining to participate in a prosecution or investigation rather than being prevented from such participation. The Committee concluded that other, less intrusive methods, such as subpoenas, were more appropriate for gaining access to these individuals. Consequently, this subdivision and related commentary were not adopted.
Lastly, commentary has been removed from Rules 201 and 206. The following commentary has been removed from Rule 201: "The Third Circuit's opinion cited with approval Commonwealth v. Patrone, 27 D&C 2d 343 (Philadelphia Co. 1962); Commonwealth v. Rehmeyer, 29 D&C 2d 635 (York Co. 1962); and Simmons v. Oklahoma, 286 P.2d 296, 298 (Okla. Cr. 1955)." This sentence has been removed as superfluous. The cases cited in that sentence are discussed in United States ex. Rel. Campbell v. Rundle, 327 F.2d 153 (3rd Cir. 1964), which is cited earlier in the second paragraph of the Comment. The following commentary has been removed from Rule 206: "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." This paragraph has been removed as unnecessary historical commentary.
* * *
The following commentary has been removed from Rule 201:
Comment, ¶ 2: "The Third Circuit's opinion cited with approval Commonwealth v. Patrone, 27 D&C 2d 343 (Philadelphia Co. 1962); Commonwealth v. Rehmeyer, 29 D&C 2d 635 (York Co. 1962); and Simmons v. Oklahoma, 286 P.2d 296, 298 (Okla. Cr. 1955)."
Official Note: Rule 2002 adopted March 28, 1973, effective 60 days hence; renumbered Rule 201 and amended March 1, 2000, effective April 1, 2001.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. 1478 (March 18, 2000).
The following commentary has been removed from Rule 205:
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; amended October 19, 2005, effective February 1, 2006; Comment revised October 22, 2013, effective January 1, 2014; amended July 31, 2017, effective October 1, 2017.
Committee Explanatory Reports:
Report explaining the September 3, 1993 amendments published at 21 Pa.B. 3681 (August 17, 1991).
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 October 19, 2005 amendments to paragraph (4) and the Comment published with the Court's Order at 35 Pa.B. 6087 (November 5, 2005).
Final Report explaining the October 22, 2013 revisions to the Comment regarding the return of the search warrant published at 43 Pa.B. 6649 (November 9, 2013).
Final Report explaining the July 31, 2017 amendment regarding search warrants for electronically stored information published with the Court's Order at 47 Pa.B. 4680 (August 12, 2017).
The following commentary has been removed from Rule 206:
Comment, ¶ 2: "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."
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; amended June 1, 2018, effective July 1, 2018.
Committee Explanatory Reports:
Report explaining the September 3, 1993 amendments published at 21 Pa.B. 3681 (August 17, 1991).
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 October 19, 2005 amendments to paragraph (6) and the Comment published with the Court's Order at 35 Pa.B. 6087 (November 5, 2005).
Amendment regarding the Court's public access policy published with the Court's Order at 48 Pa.B. 3575 (June 16, 2018).
The following commentary has been removed from Rule 208:
Official Note: Rule 2008 adopted October 17, 1973, effective 60 days hence; amended September 3, 1993, effective January 1, 1994; renumbered Rule 208 and amended March 1, 2000, effective April 1, 2001.
Committee Explanatory Reports:
Report explaining the September 3, 1993 amendments published at 21 Pa.B. 3681 (August 17, 1991).
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).
* * *
These amendments are effective October 1, 2024.
Rule 201. Purpose of Warrant.
A search warrant may be issued to search for and to seize:
[(1)](a)contraband, the fruits of a crime, or things otherwise criminally possessed; [or]
[(2)](b)property that is or has been used as the means of committing a criminal offense; [or]
[(3)](c)property that constitutes evidence of the commission of a criminal offense[.] ; or
(d) a person for whom a bench or arrest warrant has been issued.
Comment: Concerning the provisions of [paragraph (1)] subdivision (a) see United States v. Rabinowitz, 339 U.S. 56 (1950), overruled as to other points, Chimel v. California, 395 U.S. 752, 786 (1969). Also compare, Cooper v. California, 386 U.S. 58 (1967), with One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1964).
Warrants may not be issued unless the affidavit alleges a pre-existing crime. See United States ex. rel. Campbell v. Rundle, 327 F.2d 153, 161 (3rd Cir. 1964), followed sub nom. Commonwealth ex rel. Ensor v. Cummings, 207 A.2d 230 (Pa. 1965) and Commonwealth ex rel. Campbell v. Russell, 207 A.2d 232 (Pa. 1965). [The Third Circuit's opinion cited with approval Commonwealth v. Patrone, 27 D&C 2d 343 (Philadelphia Co. 1962); Commonwealth v. Rehmeyer, 29 D&C 2d 635 (York Co. 1962); and Simmons v. Oklahoma, 286 P.2d 296, 298 (Okla. Cr. 1955).]
Concerning the provisions of [paragraph (3)] subdivision (c), see Warden v. Hayden, 387 U.S. 294 (1967).
Subdivision (d) clarifies that a person is a proper subject of a search warrant when the person is also the subject of a bench or arrest warrant. In such circumstances, the search warrant is to effectuate the arrest by permitting the search of a premises other than the residence of the subject of the bench or arrest warrant. The search warrant does not take the place of the underlying bench or arrest warrant.
[Official Note: Rule 2002 adopted March 28, 1973, effective 60 days hence; renumbered Rule 201 and amended March 1, 2000, effective April 1, 2001.
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. 1478 (March 18, 2000).]
Rule 205. Contents of Search Warrant.
[(A)](a)Each search warrant shall be signed by the issuing authority and shall:
(1) specify the date and time of issuance;
(2) identify specifically the property or person to be seized;
(3) name or describe with particularity the person or place to be searched;
(4) direct that the search be executed either;
[(a)](i)within a specified period of time, not to exceed 2 days from the time of issuance, or;
[(b)](ii)when the warrant is issued for a prospective event, only after the specified event has occurred;
(5) direct that the warrant be served in the daytime unless otherwise authorized on the warrant, provided that, for purposes of the rules of Chapter 200, Part A, the term "daytime" shall be used to mean the hours of 6 a.m. to 10 p.m.;
(6) designate by title the judicial officer to whom the warrant shall be returned;
(7) certify that the issuing authority has found probable cause based upon the facts sworn to or affirmed before the issuing authority by written affidavit[(s)] attached to the warrant; and
(8) when applicable, certify on the face of the warrant that for good cause shown the affidavit[(s)] is sealed pursuant to Rule 211 and state the length of time the affidavit[(s)] will be sealed.
[(B)](b)A warrant under [paragraph (A)] subdivision (a) may authorize the seizure of electronic storage media or of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in [(A)(4)(a)] subdivision (a)(4)(i) refers to the seizure of the media or information, and not to any later off-site copying or review.Comment: [Paragraphs (A)(2) and (A)(3)] Subdivisions (a)(2) and (a)(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, 285 A.2d 510, 513-14 (Pa. 1971).
Subdivision (a)(2) reflects the provision of Rule 201(d) that provides that a person may be the subject of a search warrant when the person is also the subject of a bench or arrest warrant. In such circumstances, the search warrant is to effectuate the arrest by permitting the search of a premises other than the residence of the subject of the bench or arrest warrant. The search warrant does not take the place of the underlying bench or arrest warrant.
[Paragraph (A)(4)] Subdivision (a)(4) is included pursuant to the Court's supervisory powers over judicial procedure to supplement Commonwealth v. McCants, 299 A.2d 283 (Pa. 1973), holding that an unreasonable delay between the issuance and service of a search warrant jeopardizes its validity. [Paragraph (A)(4)] Subdivision (a)(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 (A)(4)(b)] Subdivision (a)(4)(ii) provides for anticipatory search warrants. These types of warrants are defined in Commonwealth v. Glass, 754 A.2d 655 (Pa. 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."
[Paragraph (A)(5)] Subdivision (a)(5) supplements the requirement of Rule 203(E) that special reasonable cause must be shown to justify a nighttime search. A warrant allowing a nighttime search may also be served in the daytime.
[Paragraph (A)(6)] Subdivision (a)(6) anticipates that the warrant will list the correct judicial officer to whom the warrant should be returned. There may be some instances in which the judicial officer who issues the warrant may not be the one to whom the warrant will be returned. For example, it is a common practice in many judicial districts to have an "on-call" magisterial district judge. This "on-call" judge would have the authority to issue search warrants anywhere in the judicial district but may not be assigned to the area in which the search warrant would be executed. There may be cases when the warrant is incorrectly returned to the judge who originally issued the warrant. In such cases, the issuing judge should forward the returned search warrant to the correct judicial officer. Thereafter, that judicial officer should administer the search warrant and supporting documents as provided for in these rules, including the Rule 210 requirement to file the search warrant and supporting documents with the clerk of courts.
[Paragraph (A)(8)] Subdivision (a)(8) implements the notice requirement in Rule 211(C). When the affidavit[(s)] is sealed pursuant to Rule 211, the justice or judge issuing the warrant must certify on the face of the warrant that there is good cause shown for sealing the affidavit[(s)] and must also state how long the affidavit will be sealed.
For purposes of this rule, the term "electronically stored information" includes writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained. This definition is intended to cover all current types of computer-based information and to encompass future changes and developments.
For purposes of this rule, the term "seizure" includes the copying of material or information that is subject to the search warrant. This includes the copying of electronically stored information for later analysis.
For the procedures for motions for return of property, see Rule 588.
[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; amended October 19, 2005, effective February 1, 2006; Comment revised October 22, 2013, effective January 1, 2014; amended July 31, 2017, effective October 1, 2017.
Committee Explanatory Reports:
Report explaining the September 3, 1993 amendments published at 21 Pa.B. 3681 (August 17, 1991).
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 October 19, 2005 amendments to paragraph (4) and the Comment published with the Court's Order at 35 Pa.B. 6087 (November 5, 2005).
Final Report explaining the October 22, 2013 revisions to the Comment regarding the return of the search warrant published at 43 Pa.B. 6649 (November 9, 2013).
Final Report explaining the July 31, 2017 amendment regarding search warrants for electronically stored information published with the Court's Order at 47 Pa.B. 4680 (August 12, 2017).]
Rule 206. Contents of Application for Search Warrant.
Each application for a search warrant shall be supported by a written affidavit[(s)] signed and sworn to or affirmed before an issuing authority, which affidavit[(s)] shall:
[(1)](a)state the name and department, agency, or address of the affiant;
[(2)](b)identify specifically the items, [or] property, or person to be searched for and seized;
[(3)](c)name or describe with particularity the person or place to be searched;
[(4)](d)identify the owner, occupant, or possessor of the place to be searched;
[(5)](e)specify or describe the crime which has been or is being committed;
[(6)](f) 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, or person identified are evidence or the fruit of a crime, or are contraband, 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 that these items, property, or persons are or are expected to be located at the particular place described;
[(7)](g)if a "nighttime" search is requested (i.e., 10 p.m. to 6 a.m.), state additional reasonable cause for seeking permission to search in nighttime;
[(8)](h)when the attorney for the Commonwealth is requesting that the affidavit(s) be sealed pursuant to Rule 211, state the facts and circumstances which are alleged to establish good cause for the sealing of the affidavit(s); and
[(9)](i) a certification that the application complies with the provisions of the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania regarding confidential information and documents.
Comment: For the contents of the search warrant, see Rule 205.
[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.]
Subdivisions (b) and (f) reflect the provision of Rule 201(d) that provides that a person may be the subject of a search warrant when the person is also the subject of a bench or arrest warrant. In such circumstances, the search warrant is to effectuate the arrest by permitting the search of a premises other than the residence of the subject of the bench or arrest warrant. The search warrant does not take the place of the underlying bench or arrest warrant.
[The 2005 amendments to paragraph (6) recognize] Subdivision (f) recognizes anticipatory search warrants. To satisfy the requirements of [paragraph (6)] subdivision (f) 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, 830 A.2d 554 (Pa. 2003)[, and] ; Commonwealth v. Glass, 754 A.2d 655 (Pa. 2000).
When the attorney for the Commonwealth is requesting that the search warrant affidavit[(s)] be sealed, the affidavit[(s)] in support of the search warrant must set forth the facts and circumstances the attorney for the Commonwealth alleges establish that there is good cause to seal the affidavit[(s)]. See also [Rule] Pa.R.Crim.P. 211(B)(2). Pursuant to Rule 211(B)(1), when the attorney for the Commonwealth requests that the search warrant affidavit be sealed, the application for the search warrant must be made to a judge of the court of common pleas or to an appellate court justice or judge, who would be the issuing authority for purposes of this rule. For the procedures for sealing search warrant affidavit[(s)], see Rule 211.
See Rule 113.1 regarding the Case Records Public Access Policy of the Unified Judicial System of Pennsylvania and the requirements regarding filings and documents that contain confidential information.
[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; amended June 1, 2018, effective July 1, 2018.
Committee Explanatory Reports:
Report explaining the September 3, 1993 amendments published at 21 Pa.B. 3681 (August 17, 1991).
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 October 19, 2005 amendments to paragraph (6) and the Comment published with the Court's Order at 35 Pa.B. 6087 (November 5, 2005).
Amendment regarding the Court's public access policy published with the Court's Order at 48 Pa.B. 3575 (June 16, 2018).]
Rule 208. Copy of Warrant; Receipt for Seized Property.
[(A)](a)A law enforcement officer, upon taking property or person pursuant to a search warrant, shall leave with the person from whom or from whose premises the property or person was taken a copy of the warrant and affidavit[(s)] in support thereof, and a receipt for the property seized. A copy of the warrant and affidavit[(s)] must be left whether or not any property or person is seized.
[(B)](b)If no one is present on the premises when the warrant is executed, the officer shall leave the documents specified in [paragraph (A)] subdivision (a) at a conspicuous location in the said premises. A copy of the warrant and affidavit[(s)] must be left whether or not any property or person is seized.
[(C)](c)Notwithstanding the requirements in [paragraphs (A) and (B)] subdivisions (a) and (b), the officer shall not leave a copy of an affidavit that has been sealed pursuant to Rule 211.Comment: Subdivisions (a) and (b) include the provision of Rule 201(d) that provides that a person may be the subject of a search warrant when the person is also the subject of a bench or arrest warrant. In such circumstances, the search warrant is to effectuate the arrest by permitting the search of a premises other than the residence of the subject of the bench or arrest warrant. The search warrant does not take the place of the underlying bench or arrest warrant.
[Official Note: Rule 2008 adopted October 17, 1973, effective 60 days hence; amended September 3, 1993, effective January 1, 1994; renumbered Rule 208 and amended March 1, 2000, effective April 1, 2001.
Committee Explanatory Reports:
Report explaining the September 3, 1993 amendments published at 21 Pa.B. 3681 (August 17, 1991).
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).]
Rule 209. Return With Inventory.
** *
Comment:
***
[See]See Rule [205(A)(6)] 205(a)(6) regarding the circumstances under which the issuing authority to whom the warrant is returned may differ from the one that issued the warrant.
As provided in Rule [205(A)(4)] 205(a)(4), search warrants generally authorize execution within a period not to exceed two days. Paragraph (B) requires that an unexecuted warrant be returned to the issuing authority upon expiration of this period.
** *
Rule 211. Sealing Search Warrant Affidavits. ** *
Comment: ** *
District justices, [bail commissioners] arraignment court magistrates, and municipal court judges do not have authority to seal an affidavit(s). In cases in which it is believed that there is good cause to seal the affidavit(s), the application for the search warrant must be presented to a judge of the court of common pleas or a justice or judge of an appellate court. See also [Rule 206(8)] Pa.R.Crim.P. 206(h).
** *
Rule 540. Preliminary Arraignment.
** *
Comment:
***
Paragraph (D) requires that the defendant receive copies of the arrest warrant and the supporting affidavit(s) at the time of the preliminary arraignment. See also Rules 513(A), [208(A)] 208(a), and 1003. See Rule 513.1(F) concerning a defendant's access to arrest warrant information that has been sealed.
** *
Rule 1003. Procedure in Non-Summary Municipal Court Cases.
** *
Comment:
***
Paragraph (D)(3)(c) requires that the defendant's attorney, or if unrepresented the defendant, receive copies of the arrest warrant and the supporting affidavits at the preliminary arraignment. This amendment parallels Rule 540(C). See also [Rules 208(A)] Pa.R.Crim.P. 208(a) and 513(A).
***