Summary
discussing a statute defining a search warrant as "an order in writing in the name of the state, signed by a magistrate"
Summary of this case from State v. CovertOpinion
3 Div. 297.
February 18, 1975. On Rehearing April 1, 1975.
Appeal from the Circuit Court, Montgomery County, Eugene W. Carter, J.
Howard A. Mandell, and John D. Cates, Jr., Montgomery, for appellant.
A search warrant not signed by the officer authorized to issue it is illegal and void, and a search conducted pursuant thereto is illegal. Title 15, § 104, Code of Alabama; Title 15, § 105, Code of Alabama; 79 C.J.S. Searches and Seizures, p. 882; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Mount v. State, 45 Ala. App. 244, 228 So.2d 857; Smith v. State, 51 Ala. App. 349, 285 So.2d 512, Id., 291 Ala. 798, 285 So.2d 515.
William J. Baxley, Atty. Gen., and Eric A. Bowen, Asst. Atty. Gen., for the State, appellee.
If the search warrant was defective it was harmless error, as defendant took the stand and testified that she purchased the wire from the boys; the remaining issue was credibility of the parties. Young v. Maryland, 4 Cir., 455 F.2d 679; Beverly v. State, 281 Ala. 325, 202 So.2d 534; Jones v. State, 50 Ala. App. 36, 276 So.2d 621; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, Id., 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241.
CATES, Presiding Judge.
Affirmed.
All the judges concur.
ON REHEARING
Buying, etc., stolen goods: sentence, three years in the penitentiary.
Originally we affirmed the judgment below. However, in her application for rehearing appellant points out — without contradiction by the State — that the search warrants used to retrieve the stolen copper from her home were not signed by the municipal judge.
There is no common law authorizing search warrants. Statutes authorizing searches are strictly construed against the prosecution in favor of the liberty of the citizen. Commonwealth v. Monosson, 351 Mass. 327, 221 N.E.2d 220; 79 C.J.S. Searches and Seizures § 7.
Our Legislature has in Code 1940, T. 15, § 100 defined a search warrant thus:
"A search warrant is an order in writing in the name of the state, signed by a magistrate, directed to the sheriff, or to any constable of the county, commanding him to search for personal property, and bring it before the magistrate."
(Italics added).
Often rules relating to arrest warrants parallel those applying to searches and vice versa. Significantly unsigned arrest warrants have been held void. Oates v. Bullock, 136 Ala. 537, 33 So. 835 (warrant utterly void).
Specifically as to unsigned search warrants we have noted Wilson v. Commonwealth, 211 Ky. 709, 277 S.W. 1019; Byrd v. Commonwealth (Ky.), 261 S.W.2d 437; Turner v. Commonwealth (Ky.), 328 S.W.2d 413, and State v. Cochrane, 84 S.D. 527, 173 N.W.2d 495.
Since the search warrant was not signed by the municipal judge, it is our opinion that it was void on its face and any search and seizure made thereunder was unauthorized and illegal. A judgment is void on its face when it only requires an inspection of the judgment roll to demonstrate its invalidity. Colquett v. Williams, 269 Ala. 383, 113 So.2d 347; Anderson v. Lynch, 94 Okl. 137, 221 P. 415; Spaulding Co. v. Chapin, 37 Cal.App. 573, 174 P. 334. The same is true of a search warrant when it shows on its face that it lacks the signature of any magistrate, such being the only authorized officer to put life in the paper.
The constitutional right of an individual to be secure in person and effects from an unreasonable search and seizure may be waived provided it is done voluntarily. A distinction is recognized between submission to apparent authority of an officer acting under a warrant, and unqualified consent. 68 Am.Jur.2d, Searches and Seizures, § 47. The intent to waive the constitutional immunity must be positively established and the burden of proof is upon the party alleging the waiver.
We quote from Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797:
"The issue thus presented is whether a search can be justified as lawful on the basis of consent when that 'consent' has been given only after the official conducting the search has asserted that he possesses a warrant. We hold that there can be no consent under such circumstances.
"When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid. The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.
"When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent."
In Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171, we find:
"* * * We find that the erroneous admission of this unconstitutionally obtained evidence at this petitioner's trial was prejudicial; therefore, the error was not harmless, and the conviction must be reversed. We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction."
Accordingly, the judgment below is reversed and the cause remanded for a new trial.
Application granted.
Reversed and remanded.
All the Judges concur.