                                     FINAL REPORT1


                       Amendments of Pa.R.Crim.P. 203 and 513

       FACE-TO-FACE REQUIREMENT FOR VERIFICATION OF AFFIDAVITS



       On November 9, 2017, effective January 1, 2018, upon the recommendation of
the Criminal Procedural Rules Committee, the Court amended Rules 203
(Requirements for Issuance) and 513 (Requirements for Issuance; Dissemination of
Arrest Warrant Information) that would permit telephonic verification for the swearing of
an affidavit in support of a search or arrest warrant application.

      The Committee studied a suggestion to amend the provisions of Rule 203
concerning the use of advanced communications technology for submitting search
warrant affidavits. The suggestion was to eliminate the “face-to-face” requirement for
the swearing of an affidavit in support of a search warrant application and permit the
swearing to be done telephonically. Rule 203(C) provides:

      (C) Immediately prior to submitting a search warrant application and
      affidavit to an issuing authority using advanced communication
      technology, the affiant must personally communicate with the issuing
      authority by any device which, at a minimum, allows for simultaneous
      audio-visual communication. During the communication, the issuing
      authority shall verify the identity of the affiant, and orally administer an
      oath to the affiant.

Additionally, the Comment states that “[t]he ‘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.”

        It was suggested that the face-to-face requirement of the rule can present
significant impediments to using advance communication technology to obtain search
warrants. This is especially critical when time is of the essence, such as in DUI cases,
where ethanol or other intoxicants dissipate quickly. Officers who seek to obtain search
warrants face significant obstacles if they must travel to a site with audio-visual
conferencing equipment or to an issuing authority’s office to have a face-to-face

1
 The Committee's Final Reports 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 Committee's explanatory Final Reports.




Face-To-Face Requirement for Verification of Affidavits Final Report: 11/09/2017
appearance. These obstacles are more onerous at nighttime and in the more remote
parts of the Commonwealth. Furthermore, it was noted that the federal courts have
permitted telephonic submissions for many years. See Federal Rules of Criminal
Procedure 4.1 and 41.

       The current “face-to-face” requirement was added as part of the 2002 rule
changes that first permitted the use of advanced communications technology (ACT) in
the application process for search and arrest warrants. At that time, the Committee
explained this change as follows:

      In devising the new ACT procedures, the Committee agreed that the rules
      should continue to require the ‘written’ affidavits, yet allow for the writing to
      be submitted using ACT equipment. In addition, we agreed that an
      important concept for the new procedure would be to require the issuing
      authority to verify the identity of the affiant, and to maintain the
      requirement that the issuing authority administer an oath to the affiant.
      Under the new procedure, the issuing authority and the affiant may
      communicate from separate locations, and the issuing authority will be
      able to use ACT to verify the identity of the affiant and administer the oath
      before the required documentation is transmitted. … Unlike the provisions
      in Federal Rule 41 that permit oral requests for warrants without the
      requirement of a ''face-to-face'' encounter, Rules 203 (Requirements for
      Issuance) and 513 (Requirements for Issuance) do not permit a warrant to
      issue based on oral testimony alone, and require that the issuing authority
      using ACT must be able to see the affiant when the oath is administered.
      32 Pa.B. 2591 (May 25, 2002).

        The Committee noted that when the original proposal was developed, the
Committee had published a version of this proposal that included telephonic
administration of the oath. See 29 Pa.B 4426 (August 21, 1999). At that time, the
Committee did not distinguish between telephonic and two-way simultaneous audio-
visual communication for warrant affidavit verification but rather discussed the issue in
terms of advance communications technology that includes both. The Committee was
satisfied that any form of ACT was sufficient for the constitutional requirements of
warrant issuance. Subsequently, the face-to-face requirement was incorporated into
the amendments approved in 2002. The face-to-face requirement appears to have been
added as a means of guaranteeing the identity of the affiant. Since this provision was
added at the time that ACT first was going to be permitted, there may have been
unease with the new technology without this additional guarantee of the affiant’s
identity.

       In examining this issue, the Committee studied federal practice in this area at
some length. As noted above, the federal system has permitted the use of “reliable
electronic means” for search applications for some time. Originally formulated as part of
Fed.R.Crim.P. 4.1, the procedures for the use of this type of technology currently are

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contained in Fed.R.Crim.P. 41. The Notes to Fed.R.Crim.P. 41 from the time when
these provisions were added discuss the concept of “reliable electronic means”:

       The term “electronic” is used to provide some flexibility to the rule and make
       allowance for further technological advances in transmitting data. Although
       facsimile transmissions are not specifically identified, the Committee envisions
       that facsimile transmissions would fall within the meaning of “electronic means.”

       While the rule does not impose any special requirements on use of facsimile
       transmissions, neither does it presume that those transmissions are reliable. The
       rule treats all electronic transmissions in a similar fashion. Whatever the mode,
       the means used must be “reliable.” While the rule does not further define that
       term, the Committee envisions that a court or magistrate judge would make that
       determination as a local matter. In deciding whether a particular electronic
       means, or media, would be reliable, the court might consider first, the expected
       quality and clarity of the transmission. For example, is it possible to read the
       contents of the warrant in its entirety, as though it were the original or a clean
       photocopy? Second, the court may consider whether security measures are
       available to insure that the transmission is not compromised. In this regard, most
       courts are now equipped to require that certain documents contain a digital
       signature, or some other similar system for restricting access. Third, the court
       may consider whether there are reliable means of preserving the document for
       later use.

        Pennsylvania has had over a decade of experience with remote submission of
warrant applications with little problem, easing some of the apprehension that may have
existed when use of this technology was first introduced in 2002. The Committee also
noted that telephonic verification appears to have worked with little problem in the
federal system. While there is potential for telephonic submissions to be abused, the
Committee concluded that this potential problem could be addressed by means other
than requiring video-conferencing in every case. Therefore, Rule 203 has been
amended in a manner similar to that proposed in 1999. This permits telephonic
verification, in addition to in-person and two-way audio-visual communications currently
permitted in the rule.

        Although the rule already provides for issuing authority discretion in using ACT at
all, the Committee concluded that a direct statement regarding telephonic verification
would be helpful. Therefore, an additional provision has been added to paragraph (C)
that permits an issuing authority to refuse a telephonic application if there is a question
regarding the applicant’s identity. This is consistent with the federal system that permits
such assurance as a “local matter.”

       Although the original suggestion related only to search warrant applications, the
Committee’s 1999 proposal included arrest warrant submissions and would have
permitted telephonic submission there as well. As with Rule 203, Rule 513

Face-To-Face Requirement for Verification of Affidavits Final Report: 11/09/2017        -3-
(Requirements for Issuance; Dissemination of Arrest Warrant Information) contains
similar language regarding face-to-face verification of the affidavit of probable cause.
The Committee concluded that the same concerns and rationale applied to arrest
warrant applications as well. Therefore, similar amendments have been made to Rule
513.




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