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                                                       PRINTER'S NO. 627

THE GENERAL ASSEMBLY OF PENNSYLVANIA


HOUSE BILL

No. 560 Session of 2007


        INTRODUCED BY DALLY, BASTIAN, BEYER, CALTAGIRONE, CAPPELLI,
           DENLINGER, HORNAMAN, W. KELLER, KULA, REICHLEY, SCAVELLO,
           SIPTROTH, SWANGER, WALKO AND YOUNGBLOOD, MARCH 6, 2007

        REFERRED TO COMMITTEE ON JUDICIARY, MARCH 6, 2007

                                     AN ACT

     1  Amending Title 42 (Judiciary and Judicial Procedure) of the
     2     Pennsylvania Consolidated Statutes, providing for
     3     nontestimonial identification.

     4     The General Assembly of the Commonwealth of Pennsylvania
     5  hereby enacts as follows:
     6     Section 1.  Title 42 of the Pennsylvania Consolidated
     7  Statutes is amended by adding a chapter to read:
     8                             CHAPTER 88
     9                   NONTESTIMONIAL IDENTIFICATION
    10  Sec.
    11  8801.  Definitions.
    12  8802.  Authority to issue order.
    13  8803.  Time of application.
    14  8804.  Order of authorization to obtain nontestimonial
    15         identification.
    16  8805.  Application for order.
    17  8806.  Grounds for entry of order.
    18  8807.  Issuance of order and effect.

     1  8808.  Sealing of applications, orders and supporting papers.
     2  8809.  Execution and return.
     3  8810.  Evidence relating to other offenses.
     4  8811.  Nontestimonial identification order at request of
     5         defendant.
     6  8812.  Expungement.
     7  § 8801.  Definitions.
     8     As used in this chapter, the following words and phrases
     9  shall have the meanings given to them in this section unless the
    10  context clearly indicates otherwise.
    11     "Court."  Any judge of the court of common pleas in any
    12  county having jurisdiction wherein reasonable grounds exist to
    13  believe that a particular offense has occurred.
    14     "Investigative or law enforcement officer."  Any officer of
    15  the United States, of another state or political subdivision
    16  thereof or of the Commonwealth or political subdivision thereof,
    17  who is empowered by law to conduct investigations of or to make
    18  arrests for any offense or an equivalent crime in another
    19  jurisdiction, and any attorney authorized by law to prosecute or
    20  participate in the prosecution of such offense.
    21     "Nontestimonial identification."  Includes, but shall not be
    22  limited to, identification by fingerprints, palm prints,
    23  footprints, measurements, blood specimens, urine specimens,
    24  saliva samples, hair samples, fingernail scrapings or other
    25  reasonable physical or medical examination, handwriting
    26  exemplars, voice samples, photographs, appearing in lineups and
    27  trying on articles of clothing.
    28     "Offense."  Any crime designated under the laws of this
    29  Commonwealth as punishable by imprisonment for more than one
    30  year.
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     1     "Police officers."  Defined as follows:
     2         (1)  A person who meets the requirements of 53 Pa.C.S. §
     3     2167 (relating to police training).
     4         (2)  Police officers of first class cities who have
     5     successfully completed training which is substantially
     6     equivalent to the program under 53 Pa.C.S. § 2167.
     7         (3)  Pennsylvania State Police officers.
     8         (4)  Police officers employed by the Commonwealth who
     9     have satisfactorily met the requirements of 53 Pa.C.S. §
    10     2167.
    11  § 8802.  Authority to issue order.
    12     A nontestimonial identification order authorized pursuant to
    13  this chapter may be entered by any court and the method of
    14  obtaining such nontestimonial identification shall, consistent
    15  with the purpose of the request, be the least intrusive method
    16  available.
    17  § 8803.  Time of application.
    18     A request for a nontestimonial identification order may be
    19  made prior to the arrest of a suspect, after arrest and prior to
    20  trial or, when special circumstances of the case make it
    21  appropriate, during trial.
    22  § 8804.  Order of authorization to obtain nontestimonial
    23             identification.
    24     The Attorney General, or during the absence or incapacity of
    25  the Attorney General a deputy attorney general designated in
    26  writing by the Attorney General, or the district attorney or
    27  during the absence or incapacity of the district attorney an
    28  assistant district attorney designated in writing by the
    29  district attorney of the county wherein an offense has occurred,
    30  may make written application to any court for an order
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     1  authorizing any investigative or law enforcement officer or
     2  agency having responsibility for an investigation involving
     3  criminal activity to detain the person named in the application
     4  in order to obtain nontestimonial identification.
     5  § 8805.  Application for order.
     6     Each application for an order of authorization to obtain
     7  nontestimonial identification shall be made in writing upon the
     8  personal oath or affirmation of the Attorney General or a
     9  district attorney of the county wherein the offense has occurred
    10  and shall contain all of the following:
    11         (1)  A statement of the authority of the applicant to
    12     make such application.
    13         (2)  A statement of the identity and qualifications of
    14     the investigative or law enforcement officers or agency for
    15     whom the authority to obtain nontestimonial identification is
    16     sought.
    17         (3)  A sworn statement by the investigative or law
    18     enforcement officer who has knowledge of relevant information
    19     justifying the application, which shall include:
    20             (i)  The identity or description of the particular
    21         person against whom the order authorizing nontestimonial
    22         identification is sought.
    23             (ii)  Details setting forth probable cause to believe
    24         that a particular offense has been committed.
    25             (iii)  A showing that there are reasonable grounds,
    26         not amounting to probable cause to arrest, to suspect
    27         that the person named or described in the affidavit
    28         committed the particular offense.
    29             (iv)  The particular type of nontestimonial
    30         identification sought to be obtained and a statement that
    20070H0560B0627                  - 4 -     

     1         the requested method of obtaining the particular type of
     2         nontestimonial identification is the least intrusive
     3         method available consistent with the purpose of the
     4         request.
     5         (4)  A complete statement of the facts concerning all
     6     previous applications, known to the applicant, made to any
     7     court for authorization to obtain nontestimonial
     8     identification involving the same offense, and the action
     9     taken by the court on each such application.
    10         (5)  A proposed order of authorization for consideration
    11     by the court.
    12         (6)  Such additional testimony or documentary evidence in
    13     support of the application as the court may require.
    14  § 8806.  Grounds for entry of order.
    15     (a)  Grounds for entry of order.--Upon consideration of an
    16  application, the court shall enter an ex parte order, as
    17  requested or as modified, directing any police officer to detain
    18  the person or persons named in the application for the purpose
    19  of obtaining the court-ordered nontestimonial identification and
    20  that the requested nontestimonial identification be obtained
    21  anywhere within this Commonwealth from the persons identified or
    22  described, only if the court determines on the basis of the
    23  facts submitted by the applicant that all of the following
    24  conditions exist:
    25         (1)  There is probable cause to believe that the
    26     particular offense has been committed.
    27         (2)  There are reasonable grounds, not amounting to
    28     probable cause to arrest, to suspect that the person named or
    29     described in the application committed the particular
    30     offense.
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     1         (3)  The results of the requested nontestimonial
     2     identification will be of material aid in determining whether
     3     the person named in the application committed the offense.
     4         (4)  In the case of an application for an order to obtain
     5     nontestimonial identification from a person who was the
     6     subject of a previous application or order issued pursuant to
     7     this chapter, that the current application is based upon new
     8     evidence or information different from and in addition to the
     9     evidence or information offered to support the prior order,
    10     regardless of whether such evidence was derived from prior
    11     orders or from other sources.
    12     (b)  Corroborative evidence.--As part of the consideration of
    13  an application in which there is no corroborative evidence
    14  offered, the court may inquire in camera as to the identity of
    15  any informants or any other additional information concerning
    16  the basis upon which the investigative or law enforcement
    17  officer or agency has applied for the order of authorization
    18  which the court finds relevant in order to determine whether to
    19  issue an order. Any corroborative evidence relied upon by the
    20  court in making its determination shall be documented and
    21  attached as an addendum to the application.
    22  § 8807.  Issuance of order and effect.
    23     (a)  Authorizing orders.--Each order authorizing that
    24  nontestimonial identification be obtained shall state the
    25  following:
    26         (1)  The identity of the investigative or law enforcement
    27     officers or agency to whom the authority to obtain
    28     nontestimonial identification is given and the name and
    29     official identity of the person who made the application.
    30         (2)  The identity or description of the particular person
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     1     whom the order authorizes to be taken into custody for the
     2     purpose of obtaining nontestimonial identification.
     3         (3)  A particular description of the type of
     4     nontestimonial identification and a statement of the
     5     particular offense to which it relates.
     6         (4)  The period of time during which the order shall
     7     remain in effect.
     8         (5)  A mandate to the officers or agency serving the
     9     order to detain the person named or described in the order
    10     for only such time as is necessary to obtain the
    11     nontestimonial identification.
    12     (b)  Time limits.--
    13         (1)  No order entered under this section shall be
    14     construed to authorize the detention of any individual for a
    15     period of time in excess of that necessary under the
    16     circumstances. The authority granted by an order issued
    17     pursuant to this section to detain a person shall cease as
    18     soon as practicable after the nontestimonial identification
    19     is obtained.
    20         (2)  An order entered pursuant to this section shall
    21     remain in effect for a period of 30 days and shall be
    22     returned prior to its expiration. Extensions or renewals of
    23     such an order may be granted for additional periods of not
    24     more than 30 days each. No extension or renewal shall be
    25     granted unless an application for it is made in accordance
    26     with this chapter and the court makes the findings required
    27     by section 8806 (relating to grounds for entry of order).
    28         (3)  An order entered pursuant to this section shall be
    29     executed in the daytime unless the issuing judge shall
    30     endorse thereupon that it may be served at any time, because
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     1     it appears that the person ordered to submit to
     2     nontestimonial identification may flee this Commonwealth if
     3     the order is not served forthwith.
     4     (c)  Reasonable use of force.--A police officer may employ
     5  reasonable force in cases where the person named refuses to
     6  voluntarily comply with an order issued pursuant to this
     7  chapter.
     8     (d)  Responsibility.--The order shall require the Attorney
     9  General or the district attorney, or their designees, to be
    10  responsible for the supervision of the nontestimonial
    11  identification.
    12     (e)  Assistance.--Nontestimonial identification procedures
    13  may be conducted by any investigative or law enforcement officer
    14  or other person designated by the court. An order authorizing
    15  that nontestimonial identification be obtained shall, upon
    16  request of the applicant or in the discretion of the court,
    17  direct that appropriate persons shall furnish any person
    18  executing the order with all information and technical
    19  assistance necessary to accomplish obtaining the nontestimonial
    20  identification. The court shall order that blood tests be
    21  conducted under medical supervision, and the court may require
    22  medical supervision for any other test ordered pursuant to this
    23  chapter when such supervision is deemed necessary by the court.
    24  Any person ordered to assist or assisting any person in
    25  obtaining nontestimonial identification pursuant to an order
    26  issued under this chapter shall be immune from civil and
    27  criminal liability for any assistance so rendered.
    28     (f)  Defense.--A good faith reliance on the provisions of
    29  this chapter shall be a complete defense to any civil or
    30  criminal action brought under any statute against any law
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     1  enforcement officer or agency obtaining nontestimonial
     2  identification or conducting any procedure pursuant to this
     3  chapter as well as any person who is required to provide
     4  assistance in obtaining nontestimonial identification or
     5  conducting any procedure pursuant to an order or upon request of
     6  a supervising law enforcement officer.
     7  § 8808.  Sealing of applications, orders and supporting papers.
     8     Except as otherwise provided in this chapter, applications
     9  made, orders entered and returns made pursuant to this chapter
    10  and supporting information and documents shall be sealed by the
    11  court and shall be held in custody as the court shall direct and
    12  shall not be destroyed except on order of the court and in any
    13  event shall be kept for ten years. Except as otherwise provided
    14  in this chapter, they may be disclosed only upon a showing of
    15  good cause before a court of competent jurisdiction except that
    16  any investigative or law enforcement officer may disclose such
    17  applications, orders and supporting information and documents to
    18  investigative or law enforcement officers of this or another
    19  state, any of its political subdivisions, or of the United
    20  States to the extent that such disclosure is appropriate to the
    21  proper performance of the official duties of the officer making
    22  or receiving the disclosure. In addition to any remedies and
    23  penalties provided in this chapter, any violation of the
    24  provisions of this section may be punished as contempt of the
    25  court.
    26  § 8809.  Execution and return.
    27     (a)  Search not authorized.--Except for a protective search
    28  for weapons or other dangerous instrumentality, no person who is
    29  ordered to provide nontestimonial identification may be
    30  searched, unless a separate search warrant has been issued.
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     1     (b)  Copy.--The investigative or law enforcement officer
     2  executing the order shall provide the person upon whom the order
     3  is executed with a copy of the order unless otherwise directed
     4  by the court.
     5     (c)  Return to the court.--A return to the court issuing the
     6  order shall be made by the applicant within ten days of the
     7  expiration of the order showing:
     8         (1)  Whether the person named in the nontestimonial
     9     identification order was detained and, if detention occurred,
    10     the dates and times of any detention and release.
    11         (2)  The results of any completed nontestimonial
    12     identification procedure.
    13         (3)  The status of any ongoing nontestimonial
    14     identification procedures undertaken as a result of the
    15     execution of the order and the date on which the applicant
    16     anticipates receipt of the results of the procedures.
    17         (4)  Whether the person named in the nontestimonial
    18     identification order has been charged or arrested for the
    19     offense identified in the order or for any other offense as a
    20     result of any procedure conducted pursuant to the order.
    21         (5)  Whether the person named in the nontestimonial
    22     identification order has been excluded as a possible
    23     perpetrator of the offense.
    24     (d)  Final return to the court.--If the return required under
    25  subsection (c) indicates that the results of any nontestimonial
    26  identification procedure undertaken as a result of the execution
    27  of the order have not yet been received, a final return to the
    28  court issuing the order shall be made by the applicant within
    29  ten days of the receipt of the results of all nontestimonial
    30  identification procedures undertaken as a result of the
    20070H0560B0627                 - 10 -     

     1  execution of the order showing:
     2         (1)  The results of all nontestimonial identification
     3     procedures undertaken as a result of the execution of the
     4     order.
     5         (2)  Whether the person named in the nontestimonial
     6     identification order has been charged or arrested for the
     7     offense identified in the order or for any other offense as a
     8     result of any procedure conducted pursuant to the order.
     9         (3)  Whether the person named in the nontestimonial
    10     identification order has been excluded as a possible
    11     perpetrator of the offense.
    12     (e)  Copies to person named.--The person named in the
    13  nontestimonial identification order shall be given a copy of any
    14  return made pursuant to this section.
    15     (f)  Notice to person charged.--Any person, other than the
    16  person named in the nontestimonial identification order, who is
    17  charged with an offense listed in the application shall be given
    18  notice that a nontestimonial identification order was requested
    19  under this chapter which shall contain the following:
    20         (1)  The judicial district in which the order was
    21     requested.
    22         (2)  The type of nontestimonial identification requested.
    23         (3)  Whether the request was granted or denied.
    24         (4)  The name of the judge assigned to review the
    25     application.
    26         (5)  If applicable, whether the products of the
    27     nontestimonial identification procedures, and all copies
    28     thereof, have been expunged.
    29         (6)  Notice that the person or his attorney may request
    30     that the issuing court permit an in-camera review of all
    20070H0560B0627                 - 11 -     

     1     records pertaining to the request which are in the custody of
     2     the court.
     3  § 8810.  Evidence relating to other offenses.
     4     When an investigative or law enforcement officer lawfully
     5  obtains information pursuant to an order issued under this
     6  chapter that relates to offenses other than those specified in
     7  the application, the information and any evidence derived
     8  therefrom, may be disclosed or used in any manner appropriate to
     9  the proper performance of the official duties of the officer
    10  lawfully obtaining the information.
    11  § 8811.  Nontestimonial identification order at request of
    12             defendant.
    13     A person arrested for or charged with an offense may request
    14  a court to order a nontestimonial identification procedure. If
    15  it appears that the results of specific nontestimonial
    16  identification procedures will be of material aid in determining
    17  whether the defendant committed the offense, the court shall
    18  order the Commonwealth to conduct such identification procedure
    19  under such terms and conditions as the court shall prescribe.
    20  § 8812.  Expungement.
    21     (a)  General rule.--If at the time the final return is made
    22  pursuant to section 8809 (relating to execution and return)
    23  probable cause does not exist to believe that the person named
    24  in the order has committed the offense named in the affidavit or
    25  any other offense, absent good cause shown, the issuing court
    26  shall direct, as appropriate, that the products of the
    27  nontestimonial identification procedures, and all copies
    28  thereof, be expunged.
    29     (b)  Other expungement.--If, upon the showing of good cause,
    30  the issuing court does not order that the products of the
    20070H0560B0627                 - 12 -     

     1  nontestimonial identification procedures, and all copies
     2  thereof, be expunged, the person named in the affidavit may, at
     3  any time, request that a rule be issued upon the applicant to
     4  show cause, if any exists, why the issuing court should not
     5  direct that the products of the nontestimonial identification
     6  procedures and all copies thereof, be expunged. Any person
     7  charged with an offense listed in the application shall be
     8  provided with a copy of any rule issued under this subsection
     9  and shall be afforded an opportunity to be heard.
    10     Section 2.  This act shall take effect in 60 days.














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