Rule 211. Sealing Search Warrant Affidavits.

 (A)  At the request of the attorney for the Commonwealth, a search warrant affidavit may be sealed upon good cause shown.

 (B)  When the attorney for the Commonwealth intends to request that the search warrant affidavit(s) be sealed,

   (1)  the application for the search warrant shall be presented by the attorney for the Commonwealth to a judge of the court of common pleas or an appellate court justice or judge, and

   (2)  the affidavit(s) for the search warrant shall include the facts and circumstances which are alleged to establish good cause for the sealing of the search warrant affidavit(s).

 (C)  When the justice or judge issues the search warrant and seals the search warrant affidavit(s), he or she shall also certify on the face of the warrant that for good cause shown the affidavit(s) is sealed and shall state the length of time the affidavit(s) will be sealed.

 (D)  When the search warrant is issued, the sealed affidavit(s) shall be filed with the clerk of courts in the judicial district in which the search warrant is to be executed, unless otherwise ordered by the justice or judge.

 (E)  The affidavit shall be sealed for a period of not more than 60 days, unless the time period is extended as provided in paragraph (F) or paragraph (H).

 (F)  Upon motion of the attorney for the Commonwealth for good cause shown, the justice or judge who issued the search warrant may extend the period of time that the affidavit(s) will remain sealed. If the justice or judge is unavailable, another justice or judge shall be assigned to decide the motion.

 (G)  Upon motion for good cause shown, the justice or judge may grant an unlimited number of extensions of the time that the affidavit(s) shall remain sealed. Each extension shall be for a period of not more than 30 days.

 (H)  When criminal proceedings are instituted as a result of the search,

   (1)  A copy of the sealed affidavit(s) shall be given to the defendant at or before the preliminary hearing unless otherwise ordered as provided in paragraph (H)(2).

   (2)  Upon motion of the attorney for the Commonwealth, the justice or judge who issued the warrant, for good cause shown, may delay giving the defendant a copy of the sealed affidavit(s) for periods of not more than 30 days. In no case shall the delay extend beyond the date of the court arraignment.

   (3)  If the justice or judge is unavailable, another justice or judge shall be assigned to decide the motion.

 (I)  If the motion requesting any extension pursuant to paragraphs (F) or (H) is granted, the motion and any record of the hearing on the motion shall be sealed and transmitted with the extension order to the clerk of courts.

 (J)  When the order sealing the affidavit(s) and any extensions thereof expires, the clerk of courts shall make the affidavit(s) available for public inspection.

Comment

   This rule establishes procedures for temporarily sealing the affidavit(s) supporting a search warrant. Ordinarily these procedures would be limited to cases in which an ongoing investigation using, for example, electronic surveillance (18 Pa.C.S. §  5701 et seq.) or an undercover agent, would be jeopardized by revealing the information necessary to support probable cause to obtain a search warrant. Therefore, when determining whether good cause exists to seal the affidavit(s), the justice or judge should consider, for example, whether revealing the information in the affidavit(s) would defeat an ongoing investigation or endanger an undercover agent or informant.

   District justices, bail commissioners, 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).

   When a search warrant affidavit(s) is to be sealed, the application and affidavit(s) should be prepared as separate documents, rather than on the preprinted search warrant form. See Rules 206 and 208.

   Paragraph (C) requires that the justice or judge issuing the warrant certify on the face of the warrant that for good cause shown the affidavit(s) was sealed and state the length of time the affidavit will be sealed, thereby giving notice of the sealing to the person who was searched or whose premises were searched and the defendant, if any. See Rules 205 and 206.

   Unless the justice or judge orders otherwise, paragraph (D) requires that when the search warrant is issued the sealed affidavit(s) must be filed with the clerk of courts in the judicial district in which the search is expected to be conducted. There may be cases in which the justice or judge might determine, for example, that it is better to retain the sealed affidavit(s) in his or her office until a later time, such as when the return is made, and would therefore not file the sealed affidavit(s) until after this occurs, or that the affidavit(s) should be filed with a clerk in a different judicial district.

   When determining whether there is good cause to extend the time that the affidavit(s) is to remain sealed or the time before a copy of the affidavit(s) is given to the defendant, in addition to examining the Commonwealth’s or the defendant’s need to have the affidavit sealed, the justice or judge should consider any pertinent information about the case, such as whether any items were seized, whether there were any arrests, and whether any motions were filed. The justice or judge should also consider the defendant’s need to have the affidavit(s) to prepare his or her case, especially the right to file motions, including a motion to suppress or a motion for return of property (see, e.g., Rules 578, 579, 581, and 588).

   Although the initial request to have the affidavit(s) sealed is made ex parte by the attorney for the Commonwealth as part of the search warrant application process, once the affidavit(s) is sealed and the warrant is executed, thereby giving the person who was searched or whose premises were searched and the defendant, if any, notice of the sealing, that person may, of course, request by motion that the affidavit(s) be made available to him or her, or that the order sealing the affidavit(s) be rescinded.

   Paragraphs (F) and (G) provide the procedures for extending the time that the affidavit(s) is sealed, except in cases in which criminal proceedings are instituted as a result of the search. The attorney for the Commonwealth may request that the time period be extended, but each extension may not be for more than 30 days and may only be granted upon motion for good cause shown.

   Once criminal proceedings are instituted as a result of the search, the defendant in the case has a need to have the information in the affidavit(s) to be able to prepare his or her case. Paragraph (H) requires that a copy of the sealed affidavit(s) be given to the defendant at or before the time of the preliminary hearing, unless the attorney for the Commonwealth establishes by motion that there is good cause to delay giving the defendant a copy.

   When the justice or judge finds good cause to delay giving a copy of the sealed affidavit(s) to the defendant, the justice or judge, as provided in paragraph (G), may only grant an extension for up to 30 days, after which the attorney for the Commonwealth must request another extension. Under no circumstances may the time be extended beyond the time for arraignment.

   When a sealed copy of the affidavit(s) has been given to the defendant, nothing in this rule is intended to preclude the attorney for the Commonwealth from requesting that the justice or judge issue a protective order to prevent or restrict the defendant from disclosing the contents of the affidavit. See Rule 573(F).

   When the order sealing the affidavit(s) expires, the clerk of courts must make the affidavit(s) available for public inspection.

   Official Note

   Rule 2011 adopted September 3, 1993, effective January 1, 1994; renumbered Rule 211 and amended March 1, 2000, effective April 1, 2001.

   Committee Explanatory Reports:

   Report explaining the provisions of the new rule 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. 1477 (March 18, 2000).



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