Opinion
September 8, 1975.
December 1, 1975.
Criminal Law — Practice — Search warrant — Defective search warrant — Supporting affidavits containing no jurat, seal or signature of issuing authority — Evidence seized as a result of a defective search warrant inadmissible.
1. Where the supporting affidavits to a search warrant contain no jurat, seal or signature of the issuing authority, the search warrant is defective.
2. Evidence seized pursuant to a defective search warrant is inadmissible.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 1125, Oct. T., 1975, from order of Court of Common Pleas of Monroe County, Jan. T., 1975, No. 97, in case of Commonwealth of Pennsylvania v. Mark W. Williams and Suzanne F. Williams. Order reversed and appellants discharged.
Proceedings upon application by defendants to suppress evidence. Before O'MALLEY, P.J., specially presiding.
Order entered dismissing petition. Defendants appealed.
Jean B. Green, Donald J. Martin, and Waters, Fleer, Cooper Gallager, for appellants.
James F. Marsh, District Attorney, for Commonwealth, appellee.
PRICE, J., dissented.
Submitted September 8, 1975.
On September 5, 1974, two search warrants were issued for the search of appellants' home and for the search of the grounds surrounding their home. Pursuant to these warrants, evidence was seized which the Commonwealth proposed to introduce at the trial of appellants. An application to suppress the evidence was filed, and on January 10, 1975, a suppression hearing was held. The Commonwealth agreed with appellants' contention that the warrants were defective; and, consequently, the fruits of the search were inadmissible. Nevertheless the lower court denied the motion to suppress. Appellants then petitioned this court for allowance of an appeal from the interlocutory order pursuant to Section 501(b) of the Appellate Court Jurisdiction Act. Such petition was granted and a supersedeas was issued staying the proceedings in the court below.
Act of July 31, 1970, P.L. 673, No. 223, art. V, § 501, 17 Pa.C.S.A. § 211.501(b) (Supp. 75-76).
Appellants contend here, as they did in the court below, that the warrants in question were defective because the supporting affidavits contained no jurat, seal or signature of the issuing authority. Appellants do not claim that the officer was not properly sworn, but simply argue that the failure of the magistrate to note such swearing on the affidavit caused the warrant to be defective. In light of our recent decision in Commonwealth v. McAfee, 230 Pa. Super. 336 (1974) we must agree. In McAfee, it was assumed that the officer was properly sworn and that, as here, the magistrate merely neglected to note that fact on the face of the warrant's affidavit through inadvertence. This inadvertence was held to render the warrant defective. There are no facts or circumstances in the instant case which would call for a different result.
At the January 10, 1975, suppression hearing the officer testified that he was in fact properly sworn; however, this testimony is of no consequence in light of Pa. R. Crim. P. 2003(b).
Since the Commonwealth states that, in the absence of the evidence obtained pursuant to the warrants in question, it would be unable to proceed with its case, the appellants must be discharged.
Order of the lower court reversed and appellants discharged.
PRICE, J., dissents.