In Re: Order Amending Rule 205 and Revising the Comment to Rule 209 of the Pennsylvania Rules of Criminal Procedure ( 2017 )

RULE 205. CONTENTS OF SEARCH WARRANT.
(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 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) 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;
(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) A warrant under paragraph (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) 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) 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, [446 Pa. 65, 69-74,] 285 A.2d 510, 513-14 (Pa.
1971).
Paragraph (A)(4) is included pursuant to the Court's
supervisory powers over judicial procedure to supplement
Commonwealth v. McCants, [450 Pa. 245,] 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) 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) provides for anticipatory search
warrants. These types of warrants are defined in
Commonwealth v. Glass, [562 Pa. 187,] 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) supplements the requirement of Rule
203[(C)] (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) 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
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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) 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.
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.
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* * * * *
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. 6088 (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. ( , 2017).
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RULE 209. RETURN WITH INVENTORY.
(A) The law enforcement officer executing the search warrant shall return the search
warrant promptly after the search is completed, along with any inventory required under
paragraph (C), to the issuing authority.
(B) Unexecuted warrants shall be returned promptly to the issuing authority once the
period of time authorized for execution of the warrant has expired. The affiant shall
retain a copy of the returned unexecuted search.
(C) An inventory of items seized shall be made by the law enforcement officer serving a
search warrant. The inventory shall be made in the presence of the person from whose
possession or premises the property was taken, when feasible, or otherwise in the
presence of at least one witness. The officer shall sign a statement on the inventory
that it is a true and correct listing of all items seized, and that the signer is subject to the
penalties and provisions of 18 Pa.C.S. § 4904(b) -- Unsworn Falsification To Authorities.
The inventory shall be returned to and filed with the issuing authority.
(D) The judicial officer to whom the return was made shall, upon request, cause a copy
of the inventory to be delivered to the applicant for the warrant and to the person from
whom, or from whose premises, the property was taken.
(E) When the search warrant affidavit(s) is sealed pursuant to Rule 211, the return shall
be made to the justice or judge who issued the warrant.
COMMENT: The inventory is required to ensure that all
items seized are accounted for in the return to the issuing
authority. It thus differs from the receipt required by Rule
208, which is for the personal records of those from whose
possession or from whose premises property was taken. In
some cases, however, the list in the receipt may be
sufficiently detailed so as to also be sufficient for use in the
inventory. The inventory need not be sworn to before the
issuing authority; however, the officer is subject to statutory
penalties for unsworn falsification.
The rule was amended in 2013 specifically to require that the
executed warrant be returned to the issuing authority. This
amendment reflects a procedure with a long-standing
practice but one that had not been codified in the rules.
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See Rule 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), 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.
Unexecuted search warrants are not public records, see
Rule 212(B), and therefore are not to be included in the
criminal case file nor are they to be docketed.
For the obligation of the Commonwealth to disclose exculpatory evidence,
see Rule 573 and its Comment.
NOTE: Rule 2009 adopted October 17, 1973, effective 60
days hence; amended April 26, 1979, effective July 1, 1979;
amended September 3, 1993, effective January 1, 1994;
renumbered Rule 209 and amended March 1, 2000,
effective April 1, 2001; amended October 22, 2013, effective
January 1, 2014 [.] ; Comment revised 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 22, 2013 amendments related to
the return of the search warrant published with the Court’s Order at
43 Pa.B. 6649 (November 9, 2013).
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Final Report explaining the July 31, 2017 Comment revisions
correcting a cross-reference to Rule 205 published with the Court’s
Order at 47 Pa.B. ( , 2017).
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