Bull v. Armstrong

• Decision Date: 26 October 1950
• Docket Number: 6 Div. 69
• Parties: BULL v. ARMSTRONG et al.
• Court: Alabama Supreme Court

Page 467

48 So.2d 467

254 Ala. 390

BULL v. ARMSTRONG et al.

6 Div. 69.

Supreme Court of Alabama.

Oct. 26, 1950.

Weaver & Johnson, of Haleyville, for appellant.

J. A. Posey, of Haleyville, for appellees.

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. Bureson 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 July 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.

SIMPSON, Justice.

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...