THE COURTS
[234 PA. CODE CH. 2]
Amendments to Pa.Rs.Crim.P. 203, 205 and 206
[35 Pa.B. 2861] The Criminal Procedural Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rules 203, 205, and 206 to provide procedures for anticipatory search warrants. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Report 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 explanatory Reports.
The text of the proposed changes to Rules 203, 205, and 206 precedes the Report. Additions are shown in bold; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal in writing to the Committee through counsel,
Anne T. Panfil, Chief Staff Counsel
Supreme Court of Pennsylvania
Criminal Procedural Rules Committee
5035 Ritter Road, Suite 100
Mechanicsburg, PA 17055
fax: (717) 795-2106
e-mail: criminal.rules@pacourts.usno later than Friday, June 17, 2005.
By the Criminal Procedural Rules Committee
NICHOLAS T. NASTASI,
Chair
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 so long as the warrant is based upon an affidavit showing probable cause that at some future time, but not presently, certain evidence of a crime will be located at a specified place.
Comment * * * * * 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.
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, 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 , 2005, effective , 2005.
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).
* * * * * Report explaining the proposed amendments regarding anticipatory search warrants published at 35 Pa.B. 2863 (May 14, 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 * * * * * Paragraph (4)(b) provides for anticipatory search warrants. These types of warrants were defined in Commonwealth v. Glass, 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 a crime will be located at a specified place.''
Paragraph (5) supplements the requirement of Rule 203(C) 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.
* * * * * 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 , 2005, effective , 2005.
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).
Report explaining the proposed amendments to paragraph (4) and the Comment published at 35 Pa.B. 2863 (May 14, 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 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 * * * * * 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. Glass, 754 A.2d 655 (2000) and Commonwealth v. Coleman, 830 A.2d 554 (Pa. 2003).
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 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.
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 , 2005, effective , 2005.
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).
Report explaining the proposed amendments to paragraph (6) and the Comment published at 35 Pa.B. 2863 (May 14, 2005).
REPORT
Amendments to Pa.Rs.Crim.P. 203, 205, 206
Anticipatory Search WarrantsIn Commonwealth v. Glass, 754 A.2d 655 (2000), the Supreme Court of Pennsylvania held that anticipatory search warrants were permissible in Pennsylvania. 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.'' Glass favored the position that anticipatory search warrants were not inconsistent with constitutional protections against unreasonable searches and seizures so long as the issuing authority is satisfied that the warrant will not be executed prematurely. The Court held, ''Our analysis simply recognizes that, in making the practical determination of what amounts to probable cause, the magistrate may consider likely future events, subject to the sorts of specificity and reliability strictures attending all probable cause evaluations.'' 754 A.2d at 664.
In 2003, the Court rendered the decision in Commonwealth v. Coleman, 830 A.2d 554 (2003), to ''provide further guidance on the proper contours of anticipatory search warrants.'' The Court held that, in order for an anticipatory search warrant to be valid, it must be based upon a finding that probable cause exists at the time of issuance that evidence will be found when the warrant is to be executed. In other words, the execution of the warrant must be explicitly conditioned upon the occurrence of a triggering event and that, at the time of issuance, there must be a fair probability that the event will actually occur.
The Committee, after reviewing Glass and Coleman and Part A (Search Warrants) of Chapter 2 (Investigations) of the rules, agreed the rules needed to be amended to accommodate anticipatory search warrants as recognized in Glass and its progeny. This proposal would add a new paragraph (F) to the Rule 203 (Requirements for Issuance) which would provide general authority for anticipatory search warrants, using the definition contained in Glass. A reference to Glass would also be added to the Comment to Rule 203.
The proposed amendment to paragraph (4)(b) of Rule 205 (Contents of Search Warrant) provides that when a warrant is issued for a prospective event, it may be executed only after the specified event has occurred. 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 (Contents of Application For Search Warrant) would be amended to require that the facts and circumstances that form the basis of the probable cause conclusion may include prospective events. The Comment would also be amended to refer to Glass and Coleman, adding further refinement to the probable cause determination regarding anticipatory search warrants.
[Pa.B. Doc. No. 05-925. Filed for public inspection May 13, 2005, 9:00 a.m.]
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