61 So. 20 | Ala. Ct. App. | 1913
This proceeding had its commencement in the making of an affidavit by A. R. Wild and J. M. Black before a justice of the peace, in which they deposed “that they have cause to believe, and do believe, that there are malt liquors stored in the building owned by W. C. Cureton, now occupied by E. P. Coleman, H. N. Coleman, and S. F. Glass Hdw. Co., also second story of this building, known as the 'Old Tillery Shop,’ in Lowndes Co., or in a nearby restaurant operated by Chanie Jones in said county.” Upon the making of this affidavit the justice of the peace issued a warrant directed to any lawful officer of said county, which, after reciting the averments of the affidavit, concluded as follows: “You are therefore com-
It is apparent that the issue of the warrant in question was an attempt to exercise the authority conferred by the provisions as to search warrants contained in section 22 of the act, “to further suppress the evils of intemperance,” etc., approved August 25, 1909. — Acts of Ala., Special Session 1909, p. 63. Subdivision 6 of that section of the statute states' the grounds upon which such search warrant is authorized to be issued as follows: “(a) When any person, firm, association of persons or corporation, or unknown person or other party, keeps a place where prohibitory liquors and bev
It is not to be doubted that a magistrate before whom such an unauthorized process is made returnable should quash it on the motion or application of a person whose dwelling or other premises is made the subject of the unlawful search and seizure ordered by it. It is obvious that the affidavit upon which the above-mentioned search warrant was- issued did not show probable cause for believing that there existed any lawful ground for its issue. This being true, the warrant was a mere nullity. There was nothing in either the affidavit or the warrant to indicate that the prohibited liquor referred to was stored or kept unlawfully. The required affidavit being a prerequisite to the validity of the warrant and to the lawfulness of a search made under it, legal vitality could not be given to the proceeding by an affidavit made after the unauthorized search and seizure. We know of no statute purporting to authorize the validation of the execution of such a void process by a subsequent amendment of the affidavit required to show probable cause for the issue of it, conceding that the according of such an effect to a subsequent amendment of the affidavit would be reconcilable Avith the constitutional requirement on the subject. The provision contained in subdivision 17 of the section above referred to does not undertake to go that far. The prohibition of the search of any place or the seizure of any person or thing without probable cause, supported by oath or affirmation, would not be very effectual to prevent the wrongs sought to be avoided if
Reversed and remanded.