WSR 14-01-061

RULES OF COURT

[December 12, 2013]

The District and Municipal Court Judges' Association having recommended the adoption of the proposed amendments to CrRLJ 2.2 - Warrant of Arrest or Summons Upon Complaint, CrCLJ 2.3 - Search and Seizure and CrRLJ 3.2.1 - Warrantless Arrest - Preliminary Appearance, and the Court having approved the proposed amendments for publication;

Now, therefore, it is hereby

(a) That pursuant to the provisions of GR 9(g), the proposed amendments as shown below are to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January, 2014.

(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2014. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Denise.Foster@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

DATED at Olympia, Washington this 12th day of December, 2013.

Background and Purpose: In the fall of 2012, the Superior Court Judges Association [SCJA] submitted proposed amendments to Superior Court rules CrR 2.3 [Search Warrants] and CrR 3.2.1 [Procedure Following Warrantless Arrest-Preliminary Appearance]. No amendments were proposed for the analogous rules for courts of limited jurisdiction [CLJ] at that time. As a result, an inherent conflict was potentially created between the CLJ and Superior Court rules. The DMCJA expressed concerns to the SCJA regarding the proposed amendments. Thereafter, the SCJA requested that the Supreme Court defer action on its proposed rule amendments to allow the two Associations to confer and try and reach consensus on proposed language. The Supreme Court deferred action on the SCJA's proposal until September 30, 2013. In the meantime, representatives from the SCJA and the DMCJA have discussed the overall purpose of the SCJA proposal and have come to consensus on language that addresses the concerns of both Associations. As a result of those discussions, the DMCJA hereby submits proposed amendments to three CLJ rules: CrRLJ 2.2 [Warrant of Arrest or Summons Upon Complaint]; CrRLJ 2.3 [Search and Seizure], and CrRLJ 3.2.1 [Warrantless Arrest-Preliminary Appearance].

The purpose of the proposed amendments is to acknowledge that the technology utilized by courts, law enforcement and attorneys for transmitting and preserving documents and recorded testimony has significantly evolved over the years and will continue to evolve. For over a decade, CLJ and Superior Courts in Washington have been receiving and approving search warrants and probable cause determinations via telephone, facsimile and email. The rules continue to require that the court receive the sworn evidence in support of the probable cause determination or warrant application from the prosecuting authority or police officer through reliable methods. Because technology continues to evolve, the various methods of transmitting sworn evidence and issuing probable cause determinations and warrants are not specified in these rules. The rules continue to require preservation of the sworn evidence considered by the court in making the probable cause determinations and issuing warrants.

A minor amendment is proposed to CrRLJ 2.2 to acknowledge evolving technology for recording information. In CrRLJ 2.3 the reference to CrRLJ 8.10 is deleted because GR 31 contains the provisions for public review of court records. The sentences in CrRLJ 3.2.1 were rearranged for clarity.

Because the proposed amendments are part of a three-rule package, this GR 9 Cover Sheet is being submitted with each rule proposal.

Proposed Amendment:

CrRLJ 2.2

WARRANT OF ARREST OR SUMMONS

UPON COMPLAINT

(a) Issuance of Warrant of Arrest.

(1) Generally. If a complaint is filed and if the offense charged may be tried in the jurisdiction in which the warrant issues, and if the sentence for the offense charged may include confinement in jail, the court may direct the clerk to issue a warrant for the arrest of the defendant unless the defendant has already been arrested in connection with the offense charged and is in custody or has been released on obligation to appear in court.

(2) Probable Cause. A warrant of arrest must be supported by an affidavit, a document as provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony establishing the grounds for issuing the warrant. Sworn testimony shall be recorded electronically, or stenographically or by any reliable method. The evidence shall be preserved. The court must determine there is probable cause to believe that the defendant has committed the crime alleged before issuing the warrant. The evidence shall be subject to constitutional limitations for probable cause determinations and may be hearsay in whole or in part.

(3) Ascertaining Defendant's Current Address.

(i) Search for Address. The court shall not issue a warrant unless it determines that the complainant has attempted to ascertain the defendant's current address by searching the following: (A) the District Court Information system database (DISCIS), (B) the driver's license and identicard database maintained by the Department of Licenses; and (C) the database maintained by the Department of Corrections listing persons incarcerated and under supervision. The court in its discretion may require that other databases be searched.

(ii) Exemptions from Address Search. The search required by subdivision (i) shall not be required if (A) the defendant has already appeared in court (in person or through counsel) after filing of the same case, (B) the defendant is known to be in custody, or (C) the defendant's name is unknown.

(iii) Effect of Erroneous Issuance. If a warrant is erroneously issued in violation of this subsection (a)(3), that error shall not affect the validity of the warrant.

(b) Issuance of Summons in Lieu of Warrant.

(1) Generally. If a complaint is filed, the court may direct the clerk to issue a summons commanding the defendant to appear before the court at a specified time and place.

(2) When Summons Must Issue. The court shall direct the clerk to issue a summons instead of a warrant unless it finds reasonable cause to believe that the defendant (i) will not appear in response to a summons, (ii) will commit a violent offense, (iii) will interfere with witnesses or the administration of justice, or (iv) is in custody.

(3) Summons for Felony Complaint. If the complaint charges the commission of a felony, the court may direct the clerk to issue a summons instead of a warrant unless it finds reasonable cause to believe that the defendant will not appear in response to a summons, or that arrest is necessary to prevent bodily harm to the accused or another, in which case it may issue a warrant.

(4) Summons. A summons shall be in writing and in the name of the charging jurisdiction, shall be signed by the clerk with the title of that office, and shall state the date when issued. It shall state the name of the defendant and the nature of the charge, and shall summon the defendant to appear before the court at a stated time and place. The summons shall inform the defendant that failure to appear as commanded may result in the issuance of a warrant for the arrest of the accused.

(5) Failure To Appear on Summons. If a person fails to appear in response to a summons, or if delivery is not effected within a reasonable time, a warrant of arrest may issue, if the sentence for the offense charged may include confinement in jail.

(c) Requisites of a Warrant. The warrant shall be in writing and in the name of the charging jurisdiction, shall be signed by the judge or clerk with the title of that office, and shall state the date when issued. It shall specify the name of the defendant, or if his or her name is unknown, any name or description by which he or she can be identified with reasonable certainty. The warrant shall specify the offense charged against the defendant and that the court has found that probable cause exists to believe the defendant has committed the offense charged and shall command the defendant be arrested and brought forthwith before the court issuing the warrant. If the offense is not a capital offense, the court shall set forth in the order for the warrant, bail and/or other conditions of release.

(d) Execution; Service.

(1) Execution of Warrant. The warrant shall be directed to all peace officers in the state and shall be executed only by a peace officer.

(2) Delivery of Summons. The summons may be served any place within the state. It may be served by a peace officer, who shall deliver a copy of the same to the defendant personally, or it may be delivered by the court mailing the same, postage prepaid, to the defendant at his or her last known address.

(e) Return. The officer executing a warrant shall make return thereof to the court before whom the defendant is brought pursuant to these rules. At the request of the prosecuting authority any unexecuted warrant shall be returned to the issuing court to be canceled. The peace officer to whom a summons has been given for service shall, on or before the return date, file a return thereof with the court before whom the summons is returnable. For reasonable cause, the court may order that the warrant be returned to it.

(f) Defective Warrant or Summons.

(1) Amendment. No person arrested under a warrant or appearing in response to a summons shall be discharged from custody or dismissed because of any irregularity in the warrant or summons, but the warrant or summons may be amended so as to remedy any irregularity.

(2) Issuance of New Warrant or Summons. If during the preliminary examination of any person arrested under a warrant or appearing in response to a summons, it appears that the warrant or summons does not properly name or describe the defendant or the offense with which he or she is charged, or that although not guilty of the offense specified in the warrant or summons, there is reasonable ground to believe that he or she will be charged with some other offense, the judge shall not discharge or dismiss the defendant but may allow a new complaint to be filed and shall thereupon issue a new warrant or summons.

(g) Failure to Issue Warrant—Dismissal. Upon five days' notice to the prosecuting attorney, the court shall dismiss a charge without prejudice if (i) 90 days have elapsed since the citation or complaint was filed and (ii) on the date that the order of dismissal is entered, no warrant has been issued and the defendant has not appeared in court.

[Amended effective September 1, 1991; September 1, 1995; September 1, 2003; September 1, 2006.]

Background and Purpose: In the fall of 2012, the Superior Court Judges Association [SCJA] submitted proposed amendments to Superior Court rules CrR 2.3 [Search Warrants] and CrR 3.2.1 [Procedure Following Warrantless Arrest-Preliminary Appearance]. No amendments were proposed for the analogous rules for courts of limited jurisdiction [CLJ] at that time. As a result, an inherent conflict was potentially created between the CLJ and Superior Court rules. The DMCJA expressed concerns to the SCJA regarding the proposed amendments. Thereafter, the SCJA requested that the Supreme Court defer action on its proposed rule amendments to allow the two Associations to confer and try and reach consensus on proposed language. The Supreme Court deferred action on the SCJA's proposal until September 30, 2013. In the meantime, representatives from the SCJA and the DMCJA have discussed the overall purpose of the SCJA proposal and have come to consensus on language that addresses the concerns of both Associations. As a result of those discussions, the DMCJA hereby submits proposed amendments to three CLJ rules: CrRLJ 2.2 [Warrant of Arrest or Summons Upon Complaint]; CrRLJ 2.3 [Search and Seizure], and CrRLJ 3.2.1 [Warrantless Arrest-Preliminary Appearance].

The purpose of the proposed amendments is to acknowledge that the technology utilized by courts, law enforcement and attorneys for transmitting and preserving documents and recorded testimony has significantly evolved over the years and will continue to evolve. For over a decade, CLJ and Superior Courts in Washington have been receiving and approving search warrants and probable cause determinations via telephone, facsimile and email. The rules continue to require that the court receive the sworn evidence in support of the probable cause determination or warrant application from the prosecuting authority or police officer through reliable methods. Because technology continues to evolve, the various methods of transmitting sworn evidence and issuing probable cause determinations and warrants are not specified in these rules. The rules continue to require preservation of the sworn evidence considered by the court in making the probable cause determinations and issuing warrants.

A minor amendment is proposed to CrRLJ 2.2 to acknowledge evolving technology for recording information. In CrRLJ 2.3 the reference to CrRLJ 8.10 is deleted because GR 31 contains the provisions for public review of court records. The sentences in CrRLJ 3.2.1 were rearranged for clarity.

Because the proposed amendments are part of a three-rule package, this GR 9 Cover Sheet is being submitted with each rule proposal.

Proposed Amendment:

CrRLJ 2.3

SEARCH AND SEIZURE

(a) Authority To Issue Warrant. A search warrant authorized by this rule may be issued by the court upon request of a peace officer or the prosecuting authority.

(b) Property or Persons Which May Be Seized With a Warrant. A warrant may be issued under this rule to search for and seize any (1) evidence of a crime; or (2) contraband, the fruits of crime, or things otherwise criminally possessed; or (3) weapons or other things by means of which a crime has been committed or reasonably appears about to be committed; or (4) person for whose arrest there is probable cause, or who is unlawfully restrained.

(c) Issuance and Contents. A search warrant may be issued only if the court determines there is probable cause for the issuance of a warrant. There must be a An affidavit, a document as provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony establishing the grounds for issuing the warrant, must be provided or transmitted to the court by any reliable method. The sworn testimony may be an electronically recorded telephonic statement. The s Sworn testimony must be in writing, recorded electronically, or otherwise preserved. The record shall include any additional evidence relied upon by the court. The recording, or a duplication of the recording, shall be a part of the court record and shall be provided if requested by a party or if ordered by the court, subject to the provisions of rule 8.10. The evidence in support of the finding of probable cause shall be preserved and shall be subject to constitutional limitations for such determinations and may be hearsay in whole or in part. If the court finds that probable cause for the issuance of a warrant exists, it shall issue a warrant or direct an individual whom it authorizes for such purposes to affix the court's signature to a warrant. The authorization of the warrant may be done through any reliable method. The warrant may be directed to any peace officer. The warrant shall command the officer to search, within a specified period of time not to exceed 10 days, the person, place or thing named for the property or person specified. It The warrant shall designate the court to which the warrant it shall be returned. It The warrant shall be returned to the issuing court, and filed in the public files of the court record and available for public review unless ordered sealed by the court. Unless otherwise designated by the issuing court, the warrant may be served at any time of day or night.

(d) Execution and Return With Inventory. The peace officer taking property under the warrant shall give to the person from whom or from whose premises the property is taken a copy of the warrant and a receipt for the property taken. If no such person is present, the officer may post a copy of the search warrant and receipt. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person from whose possession or premises the property is taken, or in the presence of at least one person other than the officer. The court shall upon request deliver provide a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

(e) Motion for Return of Property. A person may move the issuing court for the return of the property seized under the warrant on the ground that the property was illegally seized, or does not appear relevant or reasonably calculated to lead to the discovery of relevant evidence, and that the person is lawfully entitled to possession of the property. The motion shall be filed in the court which issued the warrant and a copy served upon the chief executive of the law enforcement agency that obtained the warrant. Proof of service shall be filed with the court. The prosecuting authority's assertion that property lawfully seized is relevant or reasonably calculated to lead to the discovery of relevant evidence shall be binding on the court.

(1) Procedure if Charges Pending. If a motion based on the ground that property was illegally seized is made or comes on for hearing after a complaint or citation and notice is filed in the court in which the motion is pending, it shall be treated as a motion to suppress. If charges are pending in another court at the time a motion made upon any ground is filed or comes on for hearing, the motion shall be transferred to the other court and subject to its rules of procedure.

(2) Procedure if No Charges Pending. If no charges are pending in any court at the time the motion is made, the issuing court shall set the motion for hearing not less than 30 days from the date of the filing or service of the motion, whichever is later.

(3) Procedure if Motion Granted. If the motion is granted, the property shall be returned unless the prosecuting authority seeks review within 14 days.

(f) Searches of Media.

(1) Scope. If an application for a search warrant is governed by RCW 10.79.015(3) or 42 U.S.C. subsection 2000aa et seq., this section controls the procedure for obtaining the evidence.

(2) Subpoena Duces Tecum. Except as provided in subsection (3), if the court determines that the application satisfies the requirements for issuance of a warrant, as provided in section (c) of this rule, the court shall issue a subpoena duces tecum in accordance with CRLJ 45(b).

(3) Warrant. If the court determines that the application satisfies the requirements for issuance of a warrant and that RCW 10.79.015(3) and 42 U.S.C. subsection 2000aa et seq. permit issuance of a search warrant rather than a subpoena duces tecum, the court may issue a warrant.

(g) Motion for Suppression. Absent prejudice to the defendant, procedural noncompliance with rules of execution and return does not compel invalidation of a warrant or suppression of its fruits.

Background and Purpose: In the fall of 2012, the Superior Court Judges Association [SCJA] submitted proposed amendments to Superior Court rules CrR 2.3 [Search Warrants] and CrR 3.2.1 [Procedure Following Warrantless Arrest-Preliminary Appearance]. No amendments were proposed for the analogous rules for courts of limited jurisdiction [CLJ] at that time. As a result, an inherent conflict was potentially created between the CLJ and Superior Court rules. The DMCJA expressed concerns to the SCJA regarding the proposed amendments. Thereafter, the SCJA requested that the Supreme Court defer action on its proposed rule amendments to allow the two Associations to confer and try and reach consensus on proposed language. The Supreme Court deferred action on the SCJA's proposal until September 30, 2013. In the meantime, representatives from the SCJA and the DMCJA have discussed the overall purpose of the SCJA proposal and have come to consensus on language that addresses the concerns of both Associations. As a result of those discussions, the DMCJA hereby submits proposed amendments to three CLJ rules: CrRLJ 2.2 [Warrant of Arrest or Summons Upon Complaint]; CrRLJ 2.3 [Search and Seizure], and CrRLJ 3.2.1 [Warrantless Arrest-Preliminary Appearance].

The purpose of the proposed amendments is to acknowledge that the technology utilized by courts, law enforcement and attorneys for transmitting and preserving documents and recorded testimony has significantly evolved over the years and will continue to evolve. For over a decade, CLJ and Superior Courts in Washington have been receiving and approving search warrants and probable cause determinations via telephone, facsimile and email. The rules continue to require that the court receive the sworn evidence in support of the probable cause determination or warrant application from the prosecuting authority or police officer through reliable methods. Because technology continues to evolve, the various methods of transmitting sworn evidence and issuing probable cause determinations and warrants are not specified in these rules. The rules continue to require preservation of the sworn evidence considered by the court in making the probable cause determinations and issuing warrants.

A minor amendment is proposed to CrRLJ 2.2 to acknowledge evolving technology for recording information. In CrRLJ 2.3 the reference to CrRLJ 8.10 is deleted because GR 31 contains the provisions for public review of court records. The sentences in CrRLJ 3.2.1 were rearranged for clarity.

Because the proposed amendments are part of a three-rule package, this GR 9 Cover Sheet is being submitted with each rule proposal.

Proposed Amendment:

CrRLJ 3.2.1

PROCEDURE FOLLOWING

WARRANTLESS ARREST—PRELIMINARY HEARING

(a) Probable Cause Determination. A person who is arrested shall have a judicial determination of probable cause no later than 48 hours following the person's arrest, unless probable cause has been determined prior to such arrest.

(b) How Determined. The court shall determine probable cause on evidence presented by a peace officer or prosecuting authority in the same manner as provided for a warrant of arrest in CrRLJ rule 2.2(a). In making the probable cause determination, the court may consider an affidavit, a document as provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony, and further may examine under oath the affiant and any witnesses the affiant may produce. Sworn testimony, including telephonic statements, shall be recorded electronically, stenographically, or by any reliable method. The written or recorded evidence considered by the court may be hearsay in whole or part. The evidence shall be preserved and shall be subject to constitutional limitations for probable cause determinations may consist of an electronically recorded telephonic statement. The court's probable cause determination may be recorded through any reliable method. If the court finds that release without bail should be denied or that conditions should attach to the release on personal recognizance, other than the promise to appear for a court hearing trial, the court shall proceed to determine whether probable cause exists to believe that the accused committed the offense charged crime alleged, unless this determination has previously been made by a court. Before making the determination, the court may consider an affidavit, a document as provided in RCW 9A.72.085 or any law amendatory thereto, or sworn testimony, and further may examine under oath the affiant and any witnesses the affiant may produce. Sworn testimony shall be electronically or stenographically recorded. The evidence shall be preserved and shall be subject to constitutional limitations for probable cause determinations, and may be hearsay in whole or in part.

(c) Court Days. For the purpose of section (a), Saturday, Sunday and holidays may be considered judicial days.

(d) Preliminary Appearance.

(1) Adult. Unless an accused has appeared or will appear before the superior court for a preliminary appearance, any accused detained in jail must be brought before a court of limited jurisdiction as soon as practicable after the detention is commenced, but in any event before the close of business on the next court day.

(2) Juveniles. Unless an accused has appeared or will appear before the superior court for a preliminary appearance, any accused in whose case the juvenile court has entered a written order declining jurisdiction and who is detained in custody, must be brought before a court of limited jurisdiction as soon as practicable after the juvenile court order is entered, but in any event before the close of business on the next court day.

(3) Unavailability. If an accused is unavailable for preliminary appearance because of physical or mental disability, the court may, for good cause shown and recorded by the court, enlarge the time prior to preliminary appearance.

(e) Procedure at Preliminary Appearance.

(1) At the preliminary appearance, the court shall provide for a lawyer pursuant to rule 3.1 and for pretrial release pursuant to rule 3.2, and the court shall orally inform the accused:

(i) of the nature of the charge against the accused;

(ii) of the right to be assisted by a lawyer at every stage of the proceedings; and

(iii) of the right to remain silent, and that anything the accused says may be used against him or her.

(2) If the court finds that release should be denied or that conditions should attach to release on personal recognizance, other than the promise to appear in court at subsequent hearings, the court shall proceed to determine whether probable cause exists to believe that the accused committed the offense charged, unless this determination has previously been made by a court. Before making the determination, the court may consider affidavits filed or sworn testimony and further may examine under oath the affiant and any witnesses he or she may produce. Subject to constitutional limitations, the finding of probable cause may be based on evidence which is hearsay in whole or in part.

(f) Time Limits.

(1) Unless a written complaint is filed or the accused consents in writing or on the record in open court, an accused, following a preliminary appearance, shall not be detained in jail or subjected to conditions of release for more than 72 hours after the accused's detention in jail or release on conditions, whichever occurs first. Computation of the 72-hour period shall not include any part of Saturdays, Sundays, or holidays.

(2) If no complaint, information or indictment has been filed at the time of the preliminary appearance, and the accused has not otherwise consented, the court shall either:

(i) order in writing that the accused be released from jail or exonerated from the conditions of release at a time certain which is within the period described in subsection (f)(1); or

(ii) set a time at which the accused shall reappear before the court. The time set for reappearance must also be within the period described in subsection (f)(1). If no complaint, information or indictment has been filed by the time set for release or reappearance, the accused shall be immediately released from jail or deemed exonerated from all conditions of release.

(g) Preliminary Hearing on Felony Complaint.

(1) When a felony complaint is filed, the court may conduct a preliminary hearing to determine whether there is probable cause to believe that the accused has committed a felony unless an information or indictment is filed in superior court prior to the time set for the preliminary hearing. If the court finds probable cause, the court shall bind the defendant over to the superior court. If the court binds the accused over, or if the parties waive the preliminary hearing, an information shall be filed without unnecessary delay. Jurisdiction vests in the superior court at the time the information is filed.

(2) If at the time a felony complaint is filed with the district court the accused is detained in jail or subjected to conditions of release, the time from the filing of the complaint in district court to the filing of an information in superior court shall not exceed 30 days plus any time which is the subject of a stipulation under subsection (g)(3). If at the time the complaint is filed with the district court the accused is not detained in jail or subjected to conditions of release, the time from the accused's first appearance in district court which next follows the filing of the complaint to the time of the filing of an information in superior court shall not exceed 30 days, excluding any time which is the subject of a stipulation under subsection (g)(3). If the applicable time period specified above elapses and no information has been filed in superior court, the case shall be dismissed without prejudice.

(3) Before or after the preliminary hearing or a waiver thereof, the court may delay a preliminary hearing or defer a bind-over date if the parties stipulate in writing that the case shall remain in the court of limited jurisdiction for a specified time, which may be in addition to the 30-day time limit established in subsection (g)(2).

(4) A preliminary hearing shall be conducted as follows:

(i) the defendant may as a matter of right be present at such hearing;

(ii) the court shall inform the defendant of the charge unless the defendant waives such reading;

(iii) witnesses shall be examined under oath and may be cross-examined;

(iv) the defendant may testify and call witnesses in the defendant's behalf.

(5) If a preliminary hearing on the felony complaint is held and the court finds that probable cause does not exist, the charge shall be dismissed, and may be refiled only if a motion to set aside the finding is granted by the superior court. The superior court shall determine whether, at the time of the hearing on such motion, there is probable cause to believe that the defendant has committed a felony.

(6) If a preliminary hearing is held, the court shall file the record in superior court promptly after notice that the information has been filed. The record shall include, but not be limited to, all written pleadings, docket entries, the bond, and any exhibits filed in the court of limited jurisdiction. Upon written request of any party, the court shall file the recording of any testimony.

[Amended effective September 1, 2002.]