Alabama Attorney General Opinion 1979-0143

WILLIAM M. BEXURS. JR EXECUTIVE ASSISTANT WALTER S TURNER SEP 10 1915 ADMINISTRATIVE BUILDING UNION CHiEr ASSISTANT ATTORNEY GENERAL AREA 1205). 11114-51110 JANIE NOBLES ADMINISTRATIVE ASSISTANT LEE L. HALE DEPUTY ATTORNEY GENERAL OFFICE OF THE ATTORNEY GjrAL I 1 aiiiii,,, . *MO I 74:4 . r '1)a I4 : i : 1/4") CHARLES A. ORADDICK ATTORNEY GENERAL STATE OF ALABAMA TN- 00143 Honorable Chalmers Bryant Mayor City of Andalusia Andalusia City Hall Andalusia, Alabama 36420 Search and Seizure - City Police Officers A municipal court may be autho- rized to direct a search warrant to a city police officers, but caution is counseled. Dear Mayor Bryant: Your August 9, 1979, letter and your city's August 7, 1979, resolution requested our opinion in answer to the following question: May a municipal court issue a search warrant directed to a city police officer? We are not able at this point in time to give a certain answer to your question. Title 15, Sections 15-5-5, 15-5-6 and 15-5-7 of the Code of Alabama, 1975, provide in very clear language that search warrants are to be directed to the sheriff or a con- stable and that only those officers may execute the warrants. The only exceptions to this general rule are: 1. Search warrants issued for evidence of violations of the fish, game and fur laws. Title 9, Section 9-2-65(2) of the Code of Alabama, 1975. 2. Search warrants for gambling equipment. Title 13, Section 13-7-95, of the Code of Alabama, 1975; Roberts v. State, 253 Ala. 565, 46 So. 2d 5 (1950) 3. Search warrants for prohibited liquors. Title 28, Sections 28-4-256, 28-4-257, and 28-4-258; Green v. State, 38 Ala. App. 189, 79 So. 2d 555 (1955) Honorable Chalmers Bryant Page Two Other than these exceptions, all search warrants must, under the statutes previously cited, be executed by a sheriff or a constable. These statutes have been on the books since 1852, and this office has on several occasions held that they mean what they say. See, for example, Attorney General Flowers' opinion written by Assistant Attorney General (now Judge) Bradley, to Col. Albert J. Lingo of the Department of Public Safety, dated August 25, 1964. Reports of the Attorney General Vol. 116, p. 39 However, the Judicial Article Implementation Act, Act No. 1205 of the 1975 Regular Session, may have changed the law so as to permit city police officers to execute search warrants. We call your attention to three sections of that Act: "8-101. . . "(c) A municipal court shall have con- current jurisdiction with the district court of all acts constituting violations of state law committed within the police jurisdiction of the municipality which may be prosecuted as breaches of muni- cipal ordinances. . . "8-109. Sheriffs and municipal law en- forcement officers shall obey municipal judge and execute legal process. - The sheriffs of the counties and law enforce- ment officers of the municipalities of are state of Alabama shall obey the muni- cipal judge havin4 legal authority in faithfully executing the warrants and processes committed to them for service accordin_g to their mandates. . . . (Emphasis supplied) "8-110. . . "(a) Warrant issuance. Municipal judges are authorized to issue arrest and search warrants for municipal ordinance violations returnable to the municipal court and for violations of state law returnable to any state court. . ." CHARLES A. GRADDICK ATTORN Y GENERAL By- 01 0 EPH G. L. MARSTON, III A SISTANT ATTORNEY GENERAL Honorable Chalmers Bryant Page Three These sections are codified as Title 12, Sections 12-14-1(b), 12-14-4 and 12-14-32 of the Code of Alabama, 1975, respectively. Notice that Section 8-110(a) authorizes municipal judges to issue search warrants for violations of municipal ordinances, returnable to itself, and of state laws, returnable to a state court. This coupled with the language in Section 8-109, referring to municipal law enforcement officers' duty to obey the munici- ple judge, ". . .in faithfully executing warrants and processes committed to them. . . .," leads to the conclusion that municipal courts are authorized to direct search warrants to city officers. We hasten to point out that it is the courts, not this office, which will make the final and binding determination of whether the Judicial Implementation Act authorizes the execution of search warrants by city police officers. We, therefore, coun- sel caution in directing search warrants to city officers. Under Section 8-109, of the Act, a municipal court may direct a war- rant to a sheriff and the safer course for now would be to do this. Very truly yours, • JGLM:dpr