PRINTER'S NO. 3723
No. 2761 Session of 1978
INTRODUCED BY SCIRICA, BERSON, SPENCER, MANDERINO, KUKOVICH,
FISHER, YOHN, RHODES, O'DONNELL, GREENLEAF, REED, QUEST,
HASKELL, HELFRICK, CALTAGIRONE, CASSIDY, FREIND AND KNEPPER,
SEPTEMBER 13, 1978
REFERRED TO COMMITTEE ON JUDICIARY, SEPTEMBER 13, 1978
AN ACT
1 Relating to the issuance of search warrants, imposing
2 limitations on the issuance of search warrants in certain
3 cases, establishing procedures for the issuance of and
4 challenge to an investigative subpoena duces tecum, and
5 providing for the promulgation of rules.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Short title.
9 This act shall be known and may be cited as the "Third Party
10 Search Protection Act."
11 Section 2. Definitions.
12 The following words and phrases when used in this act shall
13 have, unless the context clearly indicates otherwise, the
14 meanings given to them in this section:
15 "Court." A judge of the court of common pleas of the
16 judicial district of the prosecuting attorney.
17 "Investigative subpoena duces tecum." A subpoena issued
18 under this act, for the production of papers, documents, records
1 or other physical evidence.
2 "Prosecuting attorney." The Attorney General, a deputy
3 attorney general, a district attorney or an assistant district
4 attorney, conducting an investigation of suspected criminal
5 activity, within his jurisdiction.
6 Section 3. Issuance of search warrant; limitation in
7 certain cases.
8 (a) General rule.--A search warrant may issue upon probable
9 cause, to search for and seize only the following:
10 (1) contraband, the fruits of a crime, or things
11 otherwise criminally possessed;
12 (2) property which is or has been used as the means of
13 committing a criminal offense; or
14 (3) property which constitutes evidence of the
15 commission of a criminal offense, where such property is in
16 the possession or control of:
17 (i) a person who has committed or is committing the
18 offense; or
19 (ii) a person who is likely to destroy, conceal or
20 remove the property from the jurisdiction, or otherwise
21 fail to comply with an investigative subpoena duces
22 tecum.
23 (b) Limitation.--In no case may a search warrant issue to
24 search for or seize property in the possession or control of a
25 person engaged on, connected with or employed by any newspaper
26 of general circulation as defined by the laws of this
27 Commonwealth, or any press association, or any radio or
28 television station, or any magazine of general circulation, for
29 the purpose of gathering, procuring, compiling, editing or
30 publishing news unless upon probable cause to believe such
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1 property is:
2 (1) contraband, the fruits of a crime, or things
3 otherwise criminally possessed; or
4 (2) property which is or has been used as the means of
5 committing a criminal offense.
6 Section 4. Application for investigative subpoena duces tecum;
7 contents.
8 (a) Application.--Any prosecuting attorney may apply ex
9 parte to the court for the issuance of an investigative subpoena
10 duces tecum.
11 (b) Contents.--The application shall be in writing and shall
12 contain the following:
13 (1) a request for the production of specific physical
14 evidence by a particular person, and at a particular time and
15 place; and
16 (2) an affidavit by the prosecuting attorney that he is
17 conducting a bona fide investigation of suspected criminal
18 activity within his jurisdiction and that the physical
19 evidence requested under paragraph (1) is relevant to that
20 investigation.
21 Section 5. Issuance of investigative subpoena duces tecum;
22 directions to produce and reimbursement.
23 (a) Issuance.--The court may issue an investigative subpoena
24 duces tecum if it finds, on the basis of an application under
25 section 4, that the production of physical evidence specified in
26 the application is necessary to investigate suspected criminal
27 activity.
28 (b) Directions and reimbursement.--Subpoenas issued under
29 this section shall:
30 (1) direct that a particular person produce specific
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1 physical evidence at a designated time and place, and in such
2 a manner as to permit the prosecuting attorney or his agents
3 to inspect, copy or perform tests upon it; and
4 (2) provide for reimbursement of any expenses reasonably
5 incurred by the person directed to produce such evidence.
6 Section 6. Challenge to investigative subpoena duces tecum.
7 Upon motion of any person ordered to produce physical
8 evidence under this act, or any person having a legally
9 protected interest in such evidence, the court may issue a
10 protective order or an order quashing or limiting the scope of
11 the subpoena, as is appropriate, if it finds any one or more of
12 the following circumstances to exist:
13 (1) The movant has not been given an adequate
14 opportunity to consult with counsel.
15 (2) The movant lacks possession and authority to obtain
16 possession of the evidence in question.
17 (3) The production of the evidence violates a legal
18 privilege that is properly raised by the movant.
19 (4) The evidence in question is protected by the
20 provisions of 42 P.C.S § 5942 (relating to confidential
21 communications to news reporters).
22 (5) Production of the evidence imposes an unreasonable
23 burden or expense upon the movant.
24 (6) The evidence in question is not relevant to the
25 subject of investigation.
26 (7) Issuance of the subpoena is violative of law.
27 (8) Issuance of the subpoena is not in the interest of
28 justice.
29 Section 7. Contempt.
30 Failure to comply with a valid investigative subpoena duces
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1 tecum issued pursuant to this act is civil contempt.
2 Section 8. Hearing.
3 No person challenging a subpoena issued under this act, or
4 otherwise, may be held in contempt for noncompliance with the
5 subpoena unless he has first been afforded an opportunity for a
6 hearing on the merits of his challenge.
7 Section 9. Promulgation of rules.
8 The Supreme Court of Pennsylvania shall promulgate procedural
9 rules, which may be necessary to implement the provisions of
10 this act, including rules relating to the design of forms.
11 Section 10. Effective date.
12 This act shall take effect in 60 days.
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