State v. Surowiecki , 184 Conn. 95 ( 1981 )

Armentano, J.

The facts are not in dispute. On September 27,1978, a police sergeant of the Meriden police department submitted to a judge an application for a search and seizure warrant. The application requested judicial authorization for the search of the defendant’s person, automobile and apartment. The judge reviewed the application and found that it established probable cause for a search of the areas listed and for a seizure of the items described. He administered the oath to the sergeant and signed the jurat on the application. He did not, however, affix his signature to the actual search warrant. There is no dispute that the judge intended to sign the search warrant and failed to do so because of “a mere oversight.” Pursuant to the unsigned search warrant, the police searched the defendant’s automobile and apartment. They used the evidence seized during the search to establish the probable cause necessary to obtain a warrant for the defendant’s arrest. The defendant was arrested on October 27, 1978, for the crimes of burglary in the third degree, in violation of General Statutes § 53a-103, and of larceny in the third degree, in violation of General Statutes § 53a-124.

On February 5, 1979, the trial court granted the defendant’s motion to suppress the seized evidence on the ground that the unsigned search warrant was fatally defective. On February 20, 1979, the trial court granted the defendant’s motion to dismiss the charges because the arrest warrant was based on the fruits of the fatally defective search warrant. With the permission of the court, the state has appealed from the court’s action on these two motions.

The only issue on appeal is: Does the lack of a signature of a judge on a search warrant invalidate it even though the same judge found probable cause, but failed to sign the search warrant because of an oversight?

General Statutes § 54-33a (c) provides that if a judge “is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person, place, or thing to be searched.” (Emphasis added.) Although there is no doubt that the judge in this case intended to sign the search warrant, we conclude that he did not issue the search warrant until he performed this act. The signing of the search warrant was to be the identifiable objective manifestation of his subjective intent to issue the search warrant. It is only when the former act has been completed that we are able to say that a search warrant was “issued.” In other words, a lawful signature on the search warrant by the person authorized to issue it was essential to its issuance. See Perry v. Johnson, 37 Conn. 32, 35 (1870); United States v. Carignan, 286 F. Sup. 284 (D. Mass. 1967); Kelley v. State, 55 Ala. App. 402, 316 So. 2d 233 (1975); Martin v. State, 344 So. 2d 248 (Fla. App. 1976); Byrd v. Commonwealth, 261 S.W.2d 437 (Ky. 1953); State v. Flemming, 240 Mo. App. 1208, 1213, 227 S.W.2d 106 (1950); People v. Coburn, 85 Misc. 2d 673, 380 N.Y.S.2d 944 (1976); Commonwealth v. Williams, 237 Pa. Super. 324, 352 A.2d 67 (1975); State v. Cochrane, 84 S.D. 527, 173 N.W.2d 495 (1970); 4 Wharton, Criminal Law & Procedure § 1551.

In State v. Almori, 3 Conn. Cir. Ct. 641, 222 A.2d 820 (1966), the court heard an identical case and concluded that “[t]he unsigned and undated search warrant is fatally defective, invalid and void and conferred no authority to act thereunder.” Id., 644. Although we are not bound by a decision of a lower court, we adopt its analysis and conclusion. Furthermore, our conclusion that an unsigned search warrant is not valid is in line with our recent decision in State v. Cook, 183 Conn. 520, 441 A.2d 41 (1981). In that case this court held defective an arrest warrant signed by an assistant clerk of the Superior Court, even though the judge, who should have signed the warrant, had found probable cause to support it.

Since we find no error in the court’s granting of the motion to suppress, it follows, as the state concedes, that there is no error in the granting of the defendant’s motion to dismiss since there was insufficient evidence to prosecute the defendant.

There is no error.

In this opinion Bogdanski, C. J., Peters and Healey, Js., concurred.