[47 Del. 222] Motion to suppress evidence obtained under a search warrant alleged to have been illegally issued.
On the 17th day of April, 1952, David J. Lubin personally appeared before John
Affidavit for Search Warrant
'On this 17th day of April A.D. 1952, before me, John J. Jolls, Clerk of the Court of Common Pleas for New Castle County, personally appeared David J. Lubin, who being by me duly sworn, deposes and says:
'That he has good reason to suspect and does suspect that in and upon certain premises within Christiana Hundred,[47 Del. 223] to wit: the premises known as Apartment 134 A Thomas Drive, Monroe Park Apartments, Greenville, Delaware, leased by Ruth McElroy and Julian Gregg and occupied by Ruth McElroy and particularly described as follows: one bedroom apartment located on the ground floor of Building 134 Thomas Drive, there have been and are now located and concealed certain property, to wit; papers, pencils, scratch sheets, racing forms, telephone, radio and other paraphernalia, used as the means of committing a crime in violation of the statutes of the State of Delaware, to wit; keeping or using books, device, apparatus or paraphernalia for the purpose of receiving, recording, or registering bets or wagers upon the result of a trial, contest of skill, speed, or power of endurance of beasts, to wit: horse racing.
'That the facts tending to establish the grounds of this application and the probable cause of affiant's believing that such facts exist, are as follows:
'That on Wednesday, April 16, 1952, at about 11:00 A.M. that the said David J. Lubin visited the above described apartment, occupied by the said Ruth McElroy and did gain admission to said apartment from the said Ruth McElroy and while on the said premises of the above described apartment, did observe a telephone minus any call number, a scratch pad situated near said telephone with a chair nearby, 3 racing forms with writing appearing on said forms.
'That said David J. Lubin observed that the front door leading into said apartment, was equipped with a safety chain, the said David J. Lubin further observed a radio situated in the living room of the above described apartment, the said David J. Lubin further states that at the time of his visit to the above described apartment, that he detected Ruth McElroy engaging in conversation on the telephone and that he, David J. Lubin, was delayed in obtaining an acknowledgment to his knocking at front door of [47 Del. 224] above described apartment, after, apparently completing said telephone conservation, Ruth McElroy opened the door and permitted David J. Lubin and Val Zakowski and Robert Taylor, maintenance employees to enter for the purpose of examining electric wiring in said apartment.
'Wherefore, your affiant prays that a Search Warrant may issue authorizing a search of the aforesaid premises in the manner provided by law.
'/s/ David J. Lubin
'Sworn To and Subscribed before me, this 17th day of April 1952.
'John J. Jolls
'Clerk of the Court of Common Pleas for New Castle County.'
Predicated upon the averments in the affidavit of Lubin, Jolls, the Clerk of the Court, issued a search warrant and diected the same for execution purposes to Harry S. Shew, commanding Officer of the Delaware State Police, his agents or deputies.
'To Colonel Harry S. Shew, of the Delaware State Police, His Agents or Deputies, Greetings:
'Upon the annexed affidavit and application for a search warrant, I am satisfied that there is probable cause for a search of the premises located at Apartment 134 A Thomas Drive, Monroe Park Apartments, Greenville, Delware.
'You Are Hereby Commanded to search the premises located at Apartment 134 A Thomas Drive, Monroe Park Apartments, Greenville, Delaware, with the necessary and proper assistance in order to search for certain articles; to-wit: paper, pencils, scratch sheets, racing forms, telephone, [47 Del. 225] radio and other paraphernalia being used in the commission of a crime, to-wit: Receiving and Recording bets on contest of the speed and endurance of beasts, to-wit: horse-racing and to seize the aforesaid articles if found and to bring the said articles before the Honorable P. Warren Green, Judge, of the Court of Common Pleas for New Castle County and the person in whose custody or possession the same may be found and to report and act concerning the same as required of you by law.
'Witness my hand and seal at Wilmington, Delaware, this 17th day of April A.D. 1952.
'/s/ John J. Jolls
'Clerk of the Court of Common Pleas for New Castle County.'
A search was made of the premises of Ruth Davey, as indicated, in accordance with the mandate of the warrant, and the following articles of personal property were seized, to-wit: a table model radio, telephone, pencils, currency in the amount of $263, three racing forms, newspapers, red notebook and five pieces of paper.
Ruth Davey, the defendant, has filed a petition in this Court in which she seeks the entry of an order directing that said chattels, money and articles so seized and retained under the search warrant be suppressed, returned to her, and not admitted as evidence against her in any criminal proceeding whatsoever.
Two reasons are advanced by the defendant as to why the articles of personal property so taken in pursuance to the search warrant should be suppressed: (1) That John J. Jolls, Clerk of the Court of Common Pleas for New Castle County, does not possess the judicial power and authority under Article 4, Section 1 of the Constitution  to determine 'probable cause', an [47 Del. 226] essential prerequisite to the issuance of a search warrant under Article 1, Section 6 of our Constitution. (2) Conceding without admitting the power and authority in the Clerk of the Court of Common Pleas for New Castle County to issue the search warrant in question under Article 4, Section 1 of the Constitution, yet, the warrant was illegally issued because of the want of 'probable cause' as indicated under Article 1, Section 6 of the Constitution.
Louis J. Finger, Dep. Atty. Gen., for the State.
David B. Coxe, Jr., Wilmington, for defendant.
The first objection relates to the character of the task pertaining to the determination of 'probable cause' upon which the search warrant was issued; that is, is the finding of 'probable cause' a judicial or a ministerial function?
The question can only be determined, it seems to me, in the light of certain provisions appearing in our Constitution, together with the enactment of Paragraph 5343-DD, Section 65, House Bill 300, Session of 1951, Volume 48, Laws of Delaware, which is an amendment to Chapter 155, Revised Code 1935.
The pertinent constitutional provisions are as follows:
Article 4, Section 1 of the Constitution, as amended, Chapter 261, Volume 47 Laws of Delaware: 'The judicial power of this State shall be vested in a Supreme Court, a Superior
Court, a Court of Chancery, an Orphans' Court, a Register's Court, Justices of the Peace, and such other Courts as the General Assembly, with the concurrence of two-thirds of all the Members elected to each House, shall have by law established prior to the time this amended Article IV of this Constitution becomes effective or shall from time to time by law establish after such time.'
Article 1, Section 6: 'The people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and no warrant to seach any place, or to seize any person or thing, shall issue without [47 Del. 227] describing them as particularly as may be; nor then, unless there be probable cause supported by oath or affirmation.'
House Bill 300, Session of 1951, Volume 48, supra.
'Warrant to Search House or Place; When and How Issued; Complaint: How Complaint Executed; Form of Complaint; How Warrant Described; Form of Warrant; How Warrant Returnable; When May Be Executed at Night. Any Judge of the Court of Oyer and Terminer, Court of General Sessions, the Court of Common Pleas, the Municipal Court of the City of Wilmington, or the Clerk of any of the foregoing courts, or any Justice of the Peace, or any Magistrate authorized to issue warrants in criminal cases may, within the limits of their respective territorial jurisdictions, issue a warrant to search any house or place for each or any of the following: * * *'
'Probable cause' as employed under Article 1, Section 6 of our Constitution means a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that the person accused is guilty of the offense with which he is charged. Absolute certainty is not implied, nor does the term mean positive or actual cause. The determination is concerned only with whether or not the affiant has reasonable grounds for a belief, and not with the question as to whether the offense charged has been committed, or whether the accused is guilty or innocent. If the apparent facts set out in the affidavit for a search warrant are such that a reasonably discreet and prudent person would be led to believe that there was a commission of the offense charged, there is 'probable cause' justifying the issuance of a search warrant. 47 Am.Jur. (S. & S.) Par. 22; Lane v. Pennsylvania R. Co., 78 N.J.L. 672, 76 A. 1016; Tucker v. Cannon, 28 Neb. 196, 44 N.W. 440; Mitchell v. Wall, 111 Mass. 492; U. S. v. Lotempio, D.C., 58 F.2d 358; Firer v. Lowery, 59 Mo.App. 92; Driggs v. Burton, 44 Vt. 124; 34 Words & Phrases, p. 27. Thus, it seems that a determination of 'probable cause', as embodied under Article 1, Section 6 of the Constitution, becomes a mixed question of law and fact, and, as the question of law is dependent [47 Del. 228] upon the existence of facts, 'probable cause' may not be inferred without a determination that sufficient facts are stated from which it may arise.
Having suggested the meaning to be applied to the term 'probable cause' as embraced within the provisions of Article 1, Section 6 of the Constitution, I reach the question as to whether or not the power and authority to determine the same may be delegated by the Legislature to a ministerial officer such as the Clerk of the Court of Common Pleas for New Castle County in the light of the provisions of Article 4, Section 1 of the Constitution, supra. In other words, is the task in determining 'probable cause' a judicial or a ministerial function?
The determination as to whether there exists 'probable cause', predicated upon the averments in the affidavit, to suspect the person charged with having committed an offense is clearly a judicial function, and cannot, under the provisions of Article 4, Section 1 of the Constitution, be delegated to the Clerk of the Court of Common Pleas for New Castle County, an administrative officer, to be by him performed. State v. Tunnell, 302 Mo. 433, 259 S.W. 128; Toms v. Judge of Recorder's Court, 237 Mich. 413, 212 N.W. 69; Cox v. Perkins, 151 Ga. 632, 107 S.E.
204 Ark. 657
163 S.W.2d 529
State v. Van Brocklin (Dissenting ...