Lead Opinion
ON REHEARING
Buying, еtc., stolen goods: sentence, three years in the penitentiary.
Originally we affirmed the judgment below. However, in her application for reheаring appellant points out- — without contradiction by the State- — that the search warrants used to retrieve the stolen copper from her hоme 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,
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 сounty, 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 warrаnts have been held void. Oates v. Bullock,
Specifically as to unsigned search warrants we have noted Wilson v. Commonwealth,
Since the search warrant was not signed by the municiрal judge, it is our opinion that it was void on its face and any search and sеizure made thereunder was un
The constitutional right of an individual to be secure in persоn and effects from an unreasonable search and seizure may be wаived provided it is done voluntarily. A distinction is recognized between submission to apparent authority of an officer acting under a warrant,
In Fahy v. Connecticut,
“* * * 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 arе not concerned here with whether there was sufficient evidence оn which the petitioner could have been convicted without the evidеnce complained of. The question is whether there is a reasonаble 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.
Notes
. We quote from Bumper v. North Carolina,
“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 assertеd that he possesses a warrant. We hold that there can be no cоnsent under such circumstances.
“When a prosecutor seeks to rely uрon 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 disсharged by showing no more than acquiescence to a claim of lawful authority. A search eon-ducted in reliance upon a warrant cаnnot later be justified on the basis of consent if it turns out that the warrant was invalid. Thе 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 аuthority to search a home under a warrant, he announces in effeсt 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.”
Lead Opinion
Affirmed.