Petition for a Writ of Prohibition.
William E. Taylor, Jr., and Jacob Kreshtool, Wilmington, for petitioners.
Brian P. Murphy, Asst. City Solicitor, Wilmington, for respondents.
WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.
WOLCOTT, Chief Justice.
This is a Petition for a Writ of Prohibition seeking to end the prosecution of the petitioners in the Municipal Court of Wilmington on charges of willful trespass in violation of 11 Del.C., § 871.
The petitioners were engaged in a sit-in protest in the office of Joseph Miller, a relator. They were arrested on warrants supported by the sworn complaint of Miller, issued by the Clerk of the Municipal Court pursuant to 10 Del.C., § 1724(2), which authorizes the Clerk to issue warrants upon complaints in writing under oath. Subsequent to the issuance of the warrants and the arrests of the petitioners, an information signed by the Deputy Attorney General was filed, charging the petitioners with the same offense. 
In the Municipal Court the petitioners moved to quash the warrants on the ground that 10 Del.C. § 1724(2) was unconstitutional in that it purports to authorize a nonjudicial officer to perform a judicial function, i.e., the finding of probable cause for the issuance of a warrant of arrest. The motions to quash were denied. This petition followed.
Petitioners ask us to hold that 10 Del.C., § 1724(2) is unconstitutional as applied to them; that the warrants of arrest are consequently void; that the Municipal Court lacks jurisdiction over them for the offenses charged by the warrants, and that that Court be prohibited from trying them under the warrants.
There is no doubt but that a warrant of arrest may be issued only upon a showing under oath of probable cause. Both Article I, § 6 of the Delaware Constitution, Del.C.Ann. and the Fourth Amendment of the Federal Constitution so require. The warrants of arrest under which the petitioners were arrested could have been issued, therefore, only upon a showing, under oath, of probable cause and a finding to that effect.
It is clear now, if it was not heretofore, that the finding of probable cause sufficient to support the issuance of a warrant of arrest is a judicial act required to be made by a neutral and detached judicial officer. Such an officer is required to judge for himself the persuasiveness of the facts relied on to show probable cause. Johnson v. United States,333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Giordenello v. United States,357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; State of Minnesota v. Paulick,277 Minn. 140, 151 N.W.2d 591.
The issue raised by the petition, therefore, turns on the answer to the question of whether or not the Clerk of the Municipal Court is a neutral and detached judicial officer in the sense of being able to perform the judicial act of making a finding of probable cause.
In State v. Davey, 8 Terry 221,89 A.2d 871, it was held that 11 Del.C., § 2304 insofar as it authorized the Clerks of the Superior Court, the Courts of Common Pleas, and the Municipal Court, to issue search warrants upon a showing of probable cause was unconstitutional as an improper delegation of a judicial function to a nonjudicial official. We can see no difference between the requirement of showing probable cause for the issuance of a search warrant and the same requirement for the issuance of a warrant of arrest.
The Davey case is a decision of the Superior Court and thus not binding on us. Nevertheless, we think it correctly expresses the law and, accordingly, approve it. The result follows that the warrants under which the petitioners were arrested are void and the Municipal ...