State v. Cassa Pachesa ,

• Decision Date: 23 November 1926
• Docket Number: (No. 5469)
• Citation: 102 W.Va. 607
• Court: West Virginia Supreme Court
• Parties: State v. Cassa Pachesa

102 W.Va. 607

State

v.Cassa Pachesa.

(No. 5469)

Supreme Court of Appeals of West Virginia.

Submitted November 16, 1926.

Decided November 23, 1926.

1. Search and Seizure Search and Seizure Warrant Issued Under Sec. 9, Chap. 32 A, Code (Search and Seizure of Intoxicating Liquors), Commanding Officer to Forthwith Enter Premises and Search, Must be Executed Within Reasonable Time From Its Issuance; Otherwise Its Execution Constitutes Unreasonable Search Within the 6th Section of the Bill of Rights (Sec, 6, Art. III, Const.). And a Delay of 50 Days In Its Execution, Unexplained by Evidence or Justified by Circumstances, Makes Such Search Unreasonable and Unlawful as Matter of Law.

A search and seizure warrant issued under Sec. 9, Chap. 32A, Code (search and seizure of intoxicating liquors), commanding the officer to forthwith enter the premises and search, must be executed within a reasonable time from its issuance; otherwise its execution constitutes an unreasonable search within the 6th section of the Bill of Rights (Sec. 6, Art. III, Const.). And a delay of 50 days in its execution, unexplained by the evidence or justified by the circumstances, makes such search unreasonable and unlawful as a matter of law. (p. 608.)

2. Same In Such Case Evidence Obtained by Reason of Search is Inadmissible, and Judgment on Verdict of Guilty Based on Such Evidence Will be Reversed.

In such case the evidence obtained by reason of the search is inadmissible, and a judgment on a verdict of guilty based on such evidence will be reversed, (p. 612.)

Error to Circuit Court, Monongalia County. Defendant Cassa Pachesa was convicted of possessing moonshine liquor and she brings error.

Judgment reversed; verdict set aside; new trial awarded.

Howard B. Lee, Attorney General, J. Luther Wolfe, Assistant Attorney General for the State. Eugene II. Long, for plaintiff in error.

Lively, Judge:

Defendant, Cassa Pachesa, was found guilty of the unlawful possession of moonshine liquor, and was sentenced to pay a fine of $300.00 and to serve thirty days in jail. This writ followed.

The reasons assigned by defendant's counsel for reversal of this case are: (1) that the search warrant under which the liquor was found was void, and therefore no evidence procured thereunder could be used against defendant; and (2) because the defendant was a married woman living with her husband in a building owned by him and another, and therefore her husband was by law presumed to own and possess everything in their home.

Was the search warrant under which the intoxicating liquor was seized void? The warrant was issued on June 10, 1925, and was executed on July 30, 1925 fifty days after the date of its issue. Defendant's counsel contends that this was an unreasonable delay in its execution, and therefore the warrant was invalid when the search was made, citing State v. Guthrie, 90 Me. 448; Link v. Commonwealth (Ky. 1923), 251 S. W. 1016; and Farmer v. Sellers, 89 S. C. 492, to support this proposition.

In State v. Guthrie, 90 Me. 448, the court held that a search warrant must be executed and returned within a reasonable time, and that what is a reasonable time is a question to be determined by the court. In that case the search warrant was held to have expired before its execution three days after the date of its issue. The warrant itself and the statute under which it was issued expressly provided that the officer executing it should "make immediate return of said warrant", and should bring the defendant "forthwith" before the magistrate for trial. "While basing its decision largely upon the statute, the Maine court reviewed the history of search warrants, and said that the fundamental principles regulating their use, require that they should be executed within a reasonable time.

In Link v. Commonwealth (Ky. 1923), 251 S. W. 1016, the search warrant was not executed until four months and five days after it was issued. The Kentucky statute enforcing the 18th Amendment to the Federal Constitution provides that: "Any officer receiving a [search] warrant as herein set out shall immediately proceed to execute same on the day received and for a failure to do so shall be fined not less than one hundred dollars nor more than five hundred dollars." The Kentucky Supreme Court said that although the statute contained no requirement that the warrant should state on its face the time within which it must be served, yet the duty expressly imposed on the officer was at least indicative of the legislative policy that the warrant should be executed as quickly as possible after it was issued and without unnecessary delay. It was held that there could be only one conclusion drawn from a delay of four months and five days in executing a search warrant, and therefore, the court was justified in saying as a matter of law that it was not executed within a reasonable time.

In Farmer v. Sellers, 89 S. C. 492, an officer had held a search warrant for 48 days, and while attempting to serve it, was killed by the occupant of the premises to be searched. The court held that in the absence of any statutory provision, a search warrant should be executed within a reasonable time, but what constituted a reasonable time was ordinarily a question of fact for the jury, under the facts and circumstances of each case, unless but one conclusion could be drawn from the evidence, in which latter case it became a question of law for the court. It was held that under the facts and circumstances existing in that case, the court was not warranted in saying as a matter of law that a delay of 48 days in the execution of the warrant was so unreasonable as to vitiate it. In passing, the court said, in referring to State v. Guthrie, supra, "It is important to observe that the question before the Maine Court was whether the defendant should be discharged from arrest under the warrant, not whether he would be justified in shooting an officer undertaking to enforce the warrant.''

Our search for authorities on this question has revealed but three cases besides those cited by counsel, they are: McClary v. State (Okla. 1925), 246 P. 891; Elrod v. Moss (C. C. A. 1921), 278 Fed. 123; and Hiller v. State (Wis. 1926), 208 N. W. 260.

In McClary v. State, supra, the court held that a search warrant executed fourteen days after its issue was invalid, in view of the statutory provisions of that state, especially See. 2886 of the Criminal Code, which provides that a search warrant must be executed and returned to the magistrate by whom...