Summary
recognizing a private cause of action for an illegal warrantless search in violation of Alabama's constitution
Summary of this case from Bauserman v. Unemployment Ins. AgencyOpinion
6 Div. 69.
October 26, 1950.
Appeal from the Circuit Court, Winston County, Kelly V. Fite, J.
The following charges were refused to plaintiff:
"7. I charge you, gentlemen of the jury, that if you find from all the evidence that V. H. Albright, as mayor of the city of Haleyville, signed a blank search warrant form and the jurat on the blank form of affidavit for search warrant, or caused same to be signed in his name and behalf as such mayor, with the intent that same should later be filled out by law enforcement officers, and at the time of signing same he did not know whose person or premises was to be searched, or the location of same, and later the police officers or law enforcement officers did fill out the blank affidavit and search warrant so as to create what appeared to be a good and valid search warrant, and the officers by means of exhibiting same forced the plaintiff to submit to the search of his premises, then all of the defendants who participated in said search with full knowledge of the invalidity of the purported search warrant, are liable to the plaintiff as a matter of law for nominal damages."
"10. I charge you, gentlemen, that the consent of the plaintiff for the defendants O. D. Armstrong, M. M. Gibson, W. E. Dodson, and J. F. Burleson to search the dwelling house of the plaintiff, if obtained by presenting to him what was apparently a valid search warrant but which was in fact invalid, and such invalidity was known to the defendants and unknown to the plaintiff, then such consent is in law not voluntary, and is not such consent as would legally justify the defendants in searching the premises of the plaintiff."
"13. I charge you, gentlemen of the jury, that if you find that the defendants knowingly used an illegal search warrant to obtain permission of the plaintiff to search his dwelling, then that permission to search his dwelling would not amount to voluntary consent unless the plaintiff knew of the invalidity of the warrant."
"17. I charge you, gentlemen of the jury, that the defendants can not defend this action on the ground that the plaintiff consented to the search of his dwelling, unless it appears that such consent was freely given, and was not given because of the official authority of the law enforcement officers making the search or because of the purported search warrant being exhibited to him."
The following charges were given at defendants' request:
"17. The court charges the Jury that if you are reasonably satisfied from the evidence in this case that the plaintiff consented to the search complained of in the plaintiffs' complaint your verdict should be for defendants under count 1 of the complaint."
"20. The court charges the Jury that if you are reasonably satisfied from the evidence in this case that the plaintiff consented to the search complained of in the plaintiffs' complaint even though the search warrant was void your verdict should be for the defendants under count 1 of the complaint."
"23. The court charges the Jury that if you are reasonably satisfied from the evidence in this case that the plaintiff voluntarily permitted or expressly invited and agreed to the search complained of in the plaintiffs' complaint even though the search warrant was void your verdict should be for the defendants under count 1 of the complaint."
"26. The court charges the Jury that if you are reasonably satisfied from the evidence in this case that the plaintiff voluntarily permitted or expressly invited and agreed to the search complained of in the plaintiffs' complaint even though the search warrant was void such permission or consent is deemed to be a waiver of the requirement of a search warrant and your verdict should be for the defendants under count 1 of the complaint."
Charges 18, 19, 21, 24, 25, 27 and 28 are the same as charges 17, 20, 23 and 26, except that they refer to counts 2 and 3 of the complaint.
Weaver Johnson, of Haleyville, for appellant.
Where officers tell a person they have a search warrant to search his place for prohibited liquors, and the person replies, "All right, go ahead and search," or words to that effect, the person does not thereby voluntarily consent to the search of his place without a valid search warrant; he merely allows the search provided the warrant be legal, and a search made of the place under such circumstances without a valid search warrant is illegal. Morton v. State, 136 Miss. 284, 101 So. 379; State v. Watson, 133 Miss. 796, 98 So. 241; Meno v. State, 197 Ind. 16, 164 N.E. 93; Conner v. State, 201 Ind. 256, 167 N.E. 545; Coleman v. Commonwealth, 219 Ky. 139, 292 S.W. 771; Mattingly v. Commonwealth, 199 Ky. 30, 250 S.W. 105; Jones v. Commonwealth, 227 Ky. 157, 12 S.W.2d 280; Jordan v. State, 111 Tex.Crim.R. 83, 11 S.W.2d 323; Monroe v. State, 110 Tex.Crim.R. 274, 8 S.W.2d 133; Dixon v. State, 108 Tex.Crim.R. 650, 2 S.W.2d 272; State v. Littleton, 108 W. Va. 494, 151 S.E. 713; Franklin v. State, 34 Okl.Crim. 268, 246 P. 889; Smith v. State, 34 Okl.Crim. 434, 246 P. 1109; Hancock v. State, 35 Okl.Crim. 96, 248 P. 1115; Whitford v. State, 35 Okl.Crim. 187, 249 P. 430; Wilson v. State, 38 Okl.Crim. 409, 262 P. 501; Thomas v. State, 40 Okl.Crim. 98, 267 P. 278. Such a reply to an officer armed with a search warrant is to be construed as a statement of intention not to resist a search under the warrant, rather than an invitation to search the premises. Author, supra. The occupant of a home is not required to expressly protest and object to the search of his premises without a search warrant, and will not be deemed to have waived the requirement of a warrant unless it clearly appears that he voluntarily consented to or expressly invited and agreed to the search, being cognizant of his rights in the premises. Smith v. State, 133 Miss. 730, 98 So. 344; Banfill v. Byrd, 122 Miss. 288, 84 So. 227. There is a distinction between submission to apparent authority of an officer to make a search and the unqualified or voluntary consent of a person to a search of his premises by an officer. People v. Weaver, 241 Mich. 616, 217 N.W. 797, 58 A.L.R. 733; 30 Am.Jur. 528. An officer will not be protected from the consequences of executing a search warrant, on ground of the authority contained in the warrant, where the warrant was issued through the officer's own fraud. Walker v. Graham, 228 Ala. 574, 154 So. 806; Collier's Adm'r v. Windham, 27 Ala. 291, 92 Am.Dec. 767; Dearman v. Dearman, 4 Ala. 521; Fambro v. Gantt, 12 Ala. 298. Knowledge or mean of knowledge of all material facts is necessary for a waiver. Gulf Trading Co. v. Radcliff, 216 Ala. 645, 114 So. 308; American Nat. Bank Trust Co. v. Powell, 235 Ala. 236, 178 So. 21; Baker Sand Gravel Co. v. Rogers Plumbing Heating Co., 228 Ala. 612, 154 So. 591, 102 A.L.R. 346. A search warrant can only be issued on probable cause, supported by affidavit, naming or describing the person, and particularly describing the property, and the place to be searched. Code 1940, Tit. 15 § 102; Tit. 29, § 212; C. D. Hauger Co. v. Abramson, 215 Ala. 174, 110 So. 152. The magistrate, before issuing a search warrant, must examine the complainant on oath, and any other witnesses he may produce, and take their depositions in writing, and cause the same to be subscribed by the person or persons making them; and the same must set forth facts and circumstances as both tending to establish the ground or grounds of the application, or probable cause for believing that a ground exists authorizing search warrant to issue. Code 1940, Title 29 § 214; Tit. 15 § 103. A law enforcement officer who makes an illegal search of a person's premises is liable to that person in an action at law for damages. Joubert Goslin Machine Foundry Co. v. Atchley, 218 Ala. 105, 117 So. 640; Walker v. Graham, supra; Id., 233 Ala. 539, 172 So. 655; Ex parte City of Mobile, 251 Ala. 539, 38 So.2d 530.
J. A. Posey, of Haleyville, for appellees.
Appellant, J. C. Bull, sued appellees for damages for maliciously and without probable cause unlawfully searching his dwelling house against his will and without his voluntary consent. From a judgment for the defendants the plaintiff has appealed.
Error is sought to be predicated on the refusal by the trial court of certain written charges requested by the plaintiff and the giving of other written charges for the defendant. A brief resume of the evidence, in application to certain well-settled principles of law, will suffice, we think, to illustrate that error did prevail in these several rulings.
The undisputed evidence is: Defendant Burleson, chief of police of the city of Haleyville, was in possession of a number of blank search warrants which had previously been signed by the mayor in his official capacity, and on the night of August 13, 1949, on information conveyed to the defendant Armstrong, a deputy sheriff of the county, of a supposed violation by the plaintiff of the prohibition law, the said chief of police, in the presence of the other defendants, filled in the blank spaces in one of these carte blanche search warrants for the search of the plaintiff's dwelling and signed the names of defendants Dodson and Gibson (city policemen) to the affidavit. The mayor, who had previously affixed his signature to the jurat and the warrant of search, was not present, had not examined the two purported affiants, Gibson and Dodson, or either of them, regarding the facts assumed to have been stated by them in the affidavit, nor had he performed any of the functions required for the issuance of search warrants. In short, these officers concocted this search warrant without any semblance of compliance with the law and, thus arming themselves with it, proceeded to the plaintiff's home about nine p. m. and aroused him, and when he appeared at his front door Dodson stated, "I've got a search warrant to search this house," whereupon the plaintiff invited the officers in and they entered. Plaintiff then addressing Dodson said, "Bill, is this a joke?" and Dodson answered that it was not a joke and the chief of police, Burleson, said, "No, J. C., this is not a joke, he has a search warrant to search this house." The plaintiff then inspected the warrant and said, "All right, go ahead, but I still think this is a joke." The officers then made a search of his home for prohibited liquors, found none, and after completing the search told the plaintiff to "forget it" and left the premises. The plaintiff was not informed and had no knowledge that the search warrant was illegal and void and obviously submitted to the search under its authority.
The law is well established that an officer is not protected from the consequences of executing a search warrant on the basis of the authority therein contained if it was issued through the officer's own fraud or misdoing. As was observed in Walker v. Graham, 228 Ala. 574, 154 So. 806, 809: "* * * no one will be permitted to wrongfully procure the issuance of a process by practicing a fraud or imposition upon the court or authority, and seek shelter behind such a process, though it be ever so regular upon its face. He will not be permitted to shield himself behind such a cloak. * * *"
And, a law enforcement officer who makes an illegal search of a person's premises is liable to that person in an action at law for damages. Joubert Goslin Machine Foundry Co. v. Atchley, 218 Ala. 105, 117 So. 640; Walker v. Graham, supra; Ex parte City of Mobile, 251 Ala. 539, 38 So.2d 330.
The law prescribes how a search warrant may be procured. It may be issued only on probable cause supported by affidavit made before the issuing authority, naming or describing the person under suspicion and particularly describing the property to be searched for and the place to be searched. § 102, Title 15, § 212, Title 29, Code 1940; Hauger Co. v. Abramson, 215 Ala. 174, 110 So. 152.
Manifestly and without dispute these legal prescriptions were entirely ignored and the conduct of the defendants in filling in the blank search warrant and proceeding to a search of the plaintiff's premises was completely without the pale of legal warrant.
The defense in the case was rested on invitation and voluntary consent by the plaintiff because, after they presented him with the search warrant, apparently valid on its face, he permitted them to act under it and make the search. This, under the law, does not constitute waiver of his constitutional right to be secure against an unlawful search and seizure, nor is it an invitation or voluntary consent to search.
Waiver, to be effective, must be based on knowledge or means of knowledge of all material facts incident thereto. Gulf Trading Co. v. Radcliff, 216 Ala. 645, 114 So. 308; American Nat. Bank Trust Co. v. Powell, 235 Ala. 236, 178 So. 21; Baker Sand Gravel Co. v. Rogers Plumbing Heating Co., 228 Ala. 612, 154 So. 591.
One is not held to have consented to the search of his premises where it is accomplished pursuant to an apparently valid search warrant. On the contrary, the legal effect is that consent is on the basis of such a warrant and his permission is construed as an intention to abide by the law and not resist the search under the warrant, rather than an invitation to search.
The following statement of principle in 74 A.L.R. 1437 is apposite and well supported by competent authority: "While it is clear that one may, by voluntary consent to an illegal search and seizure, waive his constitutional rights in this regard * * *, the cases are by no means agreed as to what amounts to such consent or waiver. It may be said generally, however, that if the officer, in searching for intoxicating liquor or evidence of violation of liquor laws, assumes to act under a search warrant, which it is subsequently contended is illegal, the person whose premises are searched will not be held to have voluntarily consented to the search by merely acquiescing therein, and that a much stronger showing is required to justify a finding of consent under such circumstances, than if such person knows that the officer is not claiming to act under a warrant and nevertheless signifies a willingness that he shall proceed." See also 39 A.L.R. 822 et seq.; 27 A.L.R. 720 et seq.; 30 Am.Jur., § 527, p. 528.
We also find a good statement of the rule by the Supreme Court of Indiana in Meno v. State, 197 Ind. 16, 164 N.E. 93, 96, where it was said:
"* * * An invitation to search one's person or possessions, and seize a person or property, under the Constitution must be free from any coercion, duress, or fraud. One who, upon the command of an officer authorized to enter and search and seize by search warrant, opens the door to the officer and acquiesces in obedience to such a request, no matter by what language used in such acquiesence, is but showing a regard for the supremacy of the law. Such actions do not constitute an invitation.
"The presentation of a search warrant to those in charge at the place to be searched, by one authorized to serve it, is tinged with coercion, and submission thereto cannot be considered an invitation that would waive the constitutional right against unreasonable searches and seizures, but rather is to be considered a submission to the law. * * *"
Some other authorities expositing the same principle are: Morton v. State, 136 Miss. 284, 101 So. 379; State v. Watson, 133 Miss. 796, 98 So. 241; Conner v. State, 201 Ind. 256, 167 N.E. 545; Coleman v. Commonwealth, 219 Ky. 139, 292 S.W. 771; Mattingly v. Commonwealth, 199 Ky. 30, 250 S.W. 105; Jones v. Commonwealth, 227 Ky. 157, 12 S.W.2d 280; Jordan v. State, 111 Tex.Cr.R. 83, 11 S.W.2d 323; Monroe v. State, 110 Tex.Cr.R. 274, 8 S.W.2d 133; Dixon v. State, 108 Tex.Cr.R. 650, 2 S.W.2d 272; Franklin v. State, 34 Okl.Cr.R. 268, 246 P. 889; Smith v. State, 34 Okl.Cr.R. 434, 246 P. 1109; Hancock v. State, 35 Okl.Cr.R. 96, 248 P. 1115; Whitford v. State, 35 Okl.Cr.R. 187, 249 P. 430; Wilson v. State, 38 Okl.Cr.R. 409, 262 P. 501; Thomas v. State, 40 Okl.Cr.R. 98, 267 P. 278.
In the case at bar, therefore, we think it sound to conclude that the search under the void warrant was not voluntary, but compulsory. The warrant was legal on its face, and in agreeing for the officers to proceed with the search, the plaintiff was but submitting to the authority of the law and not agreeing to waive his constitutional rights; indeed, for him to have done otherwise might have constituted resisting an officer in the apparent discharge of his duty. It seems clear to us that his consent to the search was given under compulsion and in no sense can it be considered to have been voluntary or by invitation.
Charges 7, 10, 13, and 17, requested by the plaintiff and refused by the trial court, were designed to give effect to this legal principle and to instruct the jury accordingly. We think their refusal was error to reverse.
On like principle it must be held that it was error to give for the defendants charges 17, 18, 19, 20, 21, 23, 24, 25, 26, 27, and 28. The court doubtless approved these charges on the theory that there was some evidence of invitation or voluntary consent to search the plaintiff's property. As illustrated above, however, the legal effect of the search was that it was under compulsion or coercion, thereby rendering the giving of these charges also error to reverse.
Reversed and remanded.
BROWN, FOSTER, LIVINGSTON, LAWSON, and STAKELY, JJ., concur.