Thompson v. State

RAYMOND G. THIEME, Jr., Judge, Retired, Specially Assigned. Appellant Tiara Cardell Thompson was convicted by a jury in the Circuit Court for Prince George’s County of second degree murder and use of a handgun in the commission of a crime of violence. Thompson appeals from his convictions and presents the following questions for our review, which we have rephrased slightly: 1. Did the trial court err in denying appellant’s motion to suppress? 2.

Did the trial court err in imposing a ten-year term of probation, effective upon completion of appellant’s prison sentence? Facts and Proceedings On November 11, 1999, Prince George’s County police officers executed a search of Thompson’s apartment located at 4869 St. Barnabas Road in Temple Hills. The police seized thirty-nine cartridges consistent with bullets recovered from the body of Clifford Bell, who previously had been murdered. The cartridges found in Thompson’s bedroom also were consistent with cartridge casings that had been discovered near the location of the shooting.

Thompson was subsequently charged with the murder of Bell and of use of a handgun in the commission of a crime of violence. Appellant moved to suppress the physical evidence found in his apartment on the basis that the State had failed to prove that the search of his apartment was conducted pursuant to a valid warrant. An initial hearing regarding appellant’s motion to suppress was held on June 21, 2000. The State was unable ⁵⁰⁵ to produce the signed warrant upon which the search of appellant’s apartment was based.

Therefore, the State called to the stand Detective William Wilson, who was the police officer who claimed to have obtained the warrant from the issuing judge. Prior to the testimony by Detective Wilson, the trial judge spoke for purposes of the record regarding what would be State’s Exhibit 1: Madam Clerk, I have — so the record is clear, I have opened the envelope containing a — that has written on it the words, “Search warrant, Judge Robert J. Woods, Detective W. Wilson, ID Number 1634.” In the envelope that I opened in open court pursuant to the standard procedure is a document that has one, two, three, four, five pages. The first page has a title application. It says, “In the Circuit Court for Prince George’s County, in the District Court of Maryland, District Five, Application for Search Warrant.” It says, “The affiant hereby makes application to,” and there’s a line drawn to be filled in but it is not filled in.

Page two is — has no markings other than what’s typed on there. Page three has no markings other than what’s on there. Page three is entitled at the beginning first page or the only page, first and only page of something called a search warrant, unsigned and undated, except it has the month of November typed in. The fourth page is the — the third page is the application, but it appears after the search warrant itself, which is unexecuted, at least on this copy.

Okay? The fifth page is a return that’s blank and has not been filled in or signed by anybody. State’s Exhibit 1 then was introduced. Appellant subsequently objected to any proposed testimony by Detective Wilson, arguing that the officer’s testimony violated appellant’s constitutional rights.

Appellant contended that the ⁵⁰⁶ State had failed to produce the warrant and therefore the authenticity of the warrant had not been established. The trial judge overruled appellant’s objection, but stated: “You can have a continuing objection to his testimony in its entirety on the grounds that it’s unconstitutionally received and that it’s irrelevant.” Subsequently, appellant was also granted “a continuing objection to all physical evidence that was taken as a result of the search in this chase [sic] on the grounds as previously stated.” The following testimony was given by Detective William Wilson: Q: Do you recall what date that you applied for that warrant? A: I believe it was November 10th or the 11th. I’m not exactly sure which date it was.

THE COURT: Of what year, sir? A: Of '99. I’m sorry. Q: What judge do you recall appearing in front of to have the warrant — the search warrant when you made application?

A: I believe it was Judge Woods. íjí s}{ sjc Q: After you signed it and swore to it in the presence of Judge Woods, what, if anything, did you observe Judge Woods do to the warrant? A: He signed it. Appellant’s counsel subsequently cross-examined Detective Wilson. The Detective recalled going to Judge Woods’s home one evening in order to have the search warrant signed.

This dialogue followed: Q: And who else was with you when you went to his home in the evening? A: I don’t recall if anyone else was with me. Q: And approximately what time was it in the evening? ⁵⁰⁷ A: It was dark outside. I don’t recall exactly what time it was, but I know it wasn’t past midnight, but it was definitely later in the evening after dinner. $ $ Q: Where does he live?

A: I believe it’s in Bowie or Upper Marlboro. I believe his house, if I recall it correctly, sits-I don’t recall the street name, but I remember pretty distinctly that there are big power lines that you can see from his home at the end of his street. Shortly thereafter, appellant’s counsel asked Detective Wilson about the execution of the search warrant at appellant’s apartment: A: It was later in the evening. I believe it was on the 11th about 10 or 11 o’clock at night.

Q: And how much — and it was on November the 11th that you presented the search warrant to Judge Woods? A: I don’t recall if it was the 10th or the 11th. I believe it was one of those days, yeah. Q: Okay.

The [murder] in this case is alleged to have happened on November 10th at approximately 3:55; is that correct? A: Yes. Q: Okay. And did you go to Judge Woods’s home on the day of the incident?

A: I don’t believe so, no. Q: Did you — do you recall if it was the following day or after that? A: Well, if this occurred on the 10th then I don’t believe that [it was] the day that this happened, because we did interviews and were there late. Then it was probably more likely the 11th that it was signed.

Detective Wilson’s testimony established that he did not make any copies of the signed warrant, and that he also did ⁵⁰⁸ not know of anyone else who had made copies. The testimony also provided the following: Q: Do you have any notes from that time period which verify that you left — that Judge Woods signed the search warrant? A: No, I don’t. Q: Did you keep records of Judge Woods being the judge who signed the search warrant?

A: No, I did not. Q: Do you have any records which indicate when and where you took the signed search warrant after the search was executed? A: No. No, I don’t. Emily Marie Joiner, appellant’s mother, also testified at the initial suppression hearing.

The police officers who executed the warrant at appellant’s apartment had presented her with the warrant and related documents. She testified that she was shown three or four pages, but none of the documents was signed. She then said that the police had retrieved all but one of the documents from her shortly thereafter. 1 The trial court subsequently granted Thompson’s motion to suppress because the State had failed to prove by a preponderance of the evidence that the search of appellant’s apartment had been conducted pursuant to a valid warrant. The trial judge stated, however, that he would consider a motion for reconsideration of this ruling if the State brought forth new evidence.

Trial began on June 26, 2000. After the jury had been sworn, the trial judge heard motions arguments outside of the presence of the jury. The State requested that the motion to suppress hearing be reopened, announcing that it had additional witnesses to call to the stand: Judge Robert J. Woods, ⁵⁰⁹ who was the applicable emergency duty judge in November of 1999; Carol Ann Herbert, who was Judge Woods’s secretary; and Robert McDaniel, an evidence technician. 2 After the State made a proffer as to what information would be adduced by these witnesses, the trial court reopened the hearing. Judge Woods testified by phone from his chambers.

He examined a copy of the search warrant that was contained in State’s Exhibit 1, which had been presented to him earlier. This colloquy followed: Q: Do you have any specific recollection of signing that warrant back in November of 1999 when you were emergency duty judge? A: Those type [sic] of warrants are not unusual, but I have no specific recollection of signing that particular warrant. Q: If the warrant that you have reviewed had been presented to you, what, if anything, would you have done?

A: If that particular warrant had been presented to me as the duty judge, I would have signed it. Q: After signing that warrant at home one evening, what would have been your procedure? What would you have done following that? A: I would probably have taken it into the office the next day.

If it was Friday I would have taken it into the office on Monday, and given it to my secretary, Carol Ann. Q: If you had not signed that warrant when you were presented it by the police officer, would you still have brought a copy in to your secretary? A: I probably would have, but I would have told her that it was presented, but not signed. I don’t recall specifical ⁵¹⁰ ly not signing any warrants. I would have signed the warrant on its face as given.

In an attempt to corroborate testimony by Detective Wilson at the initial suppression hearing regarding power lines near Judge Woods’s home, the following was adduced: Q: Are you aware of any big power lines near your home? A: Near my home? Q: Yes. A: No. There are power lines, you know, crossing the highway of 202, and all of that, but not right around the house, no, that I know of.

A: ... That would [be] a mile or so away, at lease [sic]. A: ... The best I can recollect, there are none right around here.

There are power lines that cross 202, but I can’t remember exactly where. Carol Ann Herbert was then called as a witness by the State. She was shown State’s Exhibit 2, which was a brown envelope on which there was writing. She testified that on the envelope was written, in her handwriting: “Search warrant, Robert J. Woods, Detective Robert J. Wilson, number 1634.” This dialogue subsequently ensued: Q: Under what circumstances would you have put that handwriting on the outside of State’s Exhibit No. 2?

A: Normal procedures in our chambers is when the judge reviews a search warrant, and he issues it, I put it in a brown envelope, I label it “Search Warrant,” and the officer’s name, and I take it to the Clerk. Q: Do you know what the Clerk does with it once they [sic] receive it? A: The Clerk, they take it, and they put it in a locked drawer. ⁵¹¹ Q: Now, there are some contents inside State’s Exhibit No. 2. A: Okay.

Q: Would you be familiar with those? Would you have looked at the warrant? A: Not necessarily. The trial judge pointed out that whether a warrant had been properly issued could be proved by extrinsic evidence without the production of the warrant itself, and he then turned his attention to Md. Rule 5-1008, which provides: (a) Generally.

Except as otherwise provided in section (b) of this Rule, when the admissibility of evidence other than the original of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is for the court to determine in accordance with the provisions of Rule 5-104(a). (b) Exceptions. The following issues, if raised, are for the trier of fact to determine as in the case of other issues of facts: (1) whether the asserted writing, recording, or photograph ever existed, (2) whether another writing, recording, or photograph produced at trial is the original, or (3) whether evidence of contents other than the original correctly reflects the contents. The trial judge concluded that, pursuant to Md. Rule 5-1008, it was for the jury to determine whether the warrant had actually been signed by a judge.

In relevant part, the trial judge stated: Interestingly enough, we get to 1008, and subparagraph (a), except as otherwise provided in section (b) of this rule, when the admissibility of evidence other than the original of contents of writings, and that is what we are talking about, we are talking about other than the original of contents of writings, which is what we are talking about being the signature, we are not talking about recordings or photo ⁵¹² graphs, under these rules depends upon the fulfillment of the condition of fact, whether the condition has been fulfilled is for the court — that is this judge in this case — to determine whether under conditions of 5-104(a), which we already talked about, and that 5-104(a) is for the questions of admissibility in general. Now, the next section is the one that the court has recently directed its attention to, and it says, “The following issues, if raised, are for the trier of fact — ” in this case that would be the jury — “to determine as in the case of other issues of fact, and they are, one, if the asserted writing, recording or photograph ever existed.” That is what we are talking about. We don’t know where the original is. The question is, I believe this is a copy of the search warrant, and I so hold, in light of a lack of a better way to characterize it, in exercising my function under 5-1008.

I am reading from 5-1008, “The following issues, if raised, are to be determined whether the writing, recording or photograph ever existed.” The issue is whether the original, signed by Judge Woods, or any other judge, and I need not make that determination, ever existed. The trial judge went on to deny appellant’s motion to suppress, stating that “the basis for that is Maryland Rule 5-1008.” After commenting on the testimony and exhibits presented at the hearing, the trial judge concluded by stating: Whether any of this will come into evidence will be determined at the trial, and that is, while you haven’t convinced me that the — the issue is whether or not the writing, again, signed by a judge, and I am reading from the rule, whether the asserted writing, a search warrant signed by a judge, ever existed, signed by a judge. This is the question, did it ever exist or not, and if it did, was it served, and it was served, the return will be submitted, under rule 5-1008(b), to the jury with the appropriate instruction, if requested, for their determination. ⁵¹³ That is the ruling. Although the trial judge had made his ruling, the next day there was further discussion on the matter.

The trial judge once again considered the issue, and explained the basis for his finding: We know it existed in blank form. That has come into evidence. The question is whether it existed in an executed form, and whether it was — after it was executed, was it then served, and was there a return also executed? I am not leaving the issue of whether or not the search was constitutional to the jury.

I am leaving the issue of whether or not the document signed, three documents, the affidavit, in support of the application, the search warrant itself, and the return ever existed, in the language of the rule, and so I am treating — we will call this a motion to reconsider the ruling, and if you wanted to be heard further, and I will let you. I have not decided that there was an executed warrant. I said this to parties in chambers.... I have said to counsel, you need to provide me with instructions ... but the issue I am going to have the jury determine under Rule 5-1008 is the factuMl question of whether the asserting writing, i.e., underline, the executed search warrant and affidavit in support of the application and the return ever existed.

And my reading of the rules together is that that is a question which 5-1008 says [is] for the trier of fact, and that is ... the jury. This appeal followed. Discussion I. Validity of Search Warrant Signature by Issuing Judge Thompson asserts that “there was no finding by the judge that there had been a properly signed and executed warrant.” ⁵¹⁴ He therefore contends that the items recovered pursuant to the search of his apartment were “admitted in error.” Our review of the record indicates that the trial judge essentially intended to leave to the jury the preliminary determination as to the validity of the search warrant. The jury never specifically considered this issue, however, as no jury instruction was presented on this matter. 3 Thompson and the State agree that the trial judge erred by deferring to the jury the determination of the validity of the search warrant. 4 We note the State’s concession that “the delegation of the issue to the jury regarding the validity of the search warrant was error.” The parties depart from their agreement, however, in positing a remedy.

Thompson insists that the failure by the trial judge to rule on the validity of the search warrant is cause for a reversal of his convictions and a grant of a new trial. On the other hand, the State argues that the correct remedy would be a limited remand whereby we would instruct the trial court “to determine whether in fact the search warrant was properly issued.” As we will explain herein, we think that the suggestion posed by the State represents the appropriate solution. “It is firmly established that the admissibility of evidence claimed to have been obtained by an unreasonable search and seizure warrant claimed to be invalid is a matter exclusively for the trial court.” Hepple v. State, 31 Md.App. 525, 554 , 358 A.2d 283 (1976) (citations omitted). In Cleveland v. State, 8 Md.App. 204, 207 , 259 A.2d 73 (1969) (citation omitted), we ⁵¹⁵ noted that “[t]he basic rule is that the admission or exclusion of evidence is within the sound discretion of the trial court.” We also said in Cleveland : We see nothing in the Rule from which we could conclude that after the court has found that the evidence seized was admissible, the jury has the ultimate determination of whether or not the search or seizure was reasonable. Thus if the property was obtained under a search and seizure warrant, the affidavit on which the warrant is based does not go to the jury; if the property was obtained by a search or seizure incident to an arrest, evidence as to probable cause for the issuance of an arrest warrant or for a warrant-less arrest does not go to the jury; if the property was obtained without a search warrant or an arrest, evidence as to the reasonableness of the search and seizure does not go to the jury.

Id, at 208-09, 259 A.2d 73 . In Winebrenner v. State, 6 Md.App. 440, 444 , 251 A.2d 610 (1969), we cited Md. Rule 729, see infra, and stated that “if [a] case is being tried before a jury, the hearing on the motion to suppress or exclude the evidence or on the objection to the evidence shall be out of the presence of the jury.” We recognize that the rationale for our holdings in Wine-brenner and Cleveland were based partially on Md. Rule 729, which has since been rescinded. 5 Nevertheless, we pointed ⁵¹⁶ out in Cleveland that our conclusion in that case was based on the principle that “Rule 729 recognized and adhered to the basic rule of law that the admissibility of evidence was a matter of the trial court’s sound discretion.” Id. at 208 , 259 A.2d 73 . We ultimately concluded on this issue in Cleveland : We hold that the admissibility of evidence obtained by any search or seizure claimed to be invalid is a matter exclusively for the trial court. If the evidence is found by the trial court to have been unlawfully obtained, it shall be excluded.

In a jury trial, if the evidence is found by the trial court to have been lawfully obtained, it shall be submitted to the jury and no evidence pertaining to the legality of the seizure shall be presented to the jury. The jury considers the evidence so admitted, along with other evidence before them, in arriving at their verdict. Thus the trial court here, having found the arrest of the appellant to be legal, did not err in refusing to instruct the jury as requested with regard to the validity of the appellant’s arrest and the admissibility of the evidence seized incident thereto. Id. at 213 , 259 A.2d 73 .

Rule 729 did not create the basic principle of law on which it was based; rather, Rule 729 was adopted in accordance with the basic law that had already been established. As such, Rule 729 merely codified what the law was before its enactment, and what still remains the law regardless of its rescission. To confirm this point, we look to Farrow v. State, 233 Md. 526 , 197 A.2d 434 (1964), a case decided by the Court of ⁵¹⁷ Appeals prior to the adoption of Rule 729. In Farrow , the Court said: [T]he determination of the admissibility of evidence which is dependent upon the lawfulness of an arrest should be made by the trial judge as a preliminary matter quite apart, of course, from the question of the guilt or innocence of the accused; and if the case is being tried before a jury, such a matter should be heard out of the presence of the jury.

Id, at 533, 197 A.2d 434 . The present case involves the lawfulness of a search and seizure of physical evidence, while Farrow involved the lawfulness of an arrest; nonetheless, the above-quoted language by the Court is instructive as it speaks to the role of the trial judge, rather than that of the jury, in determining such preliminary matters. Perhaps most dispositive on this issue is our decision in Robinson v. State, 4 Md.App. 515, 243 A.2d 879 (1968). We decided Robinson after Rule 729 had been promulgated; however, the appellant’s trial had taken place prior to the adoption of the Rule.

We discussed Rule 729, and then we said: The rule was not effective at the time of the appellant’s trial, but the substance of it was the preferred, procedure prior to its adoption. It was established before the rule was adopted that the determination of the admissibility of evidence which is dependent upon the lawfulness of an arrest should be made by the trial judge as a preliminary matter quite apart from the question of the guilt or innocence of the accused. “If the case is being tried before a jury, such a matter should be heard out of the presence of the jury.” Farrow v. State, 233 Md. 526, 533 , 197 A.2d 434 . Nor was it essential prior to the effective date of the rule, that a motion to suppress the evidence be made prior to trial. A motion to suppress the evidence and objection to its introduction at trial preserved a defendant’s basic constitutional right.

Shrout v. State, 238 Md. 170, 174 [, 208 A.2d 585 (1965) ]. In the instant case we think the trial court erred in not ⁵¹⁸ determining the matter of the admissibility of the challenged evidence out of the presence of the jury. Id. at 521-22, 243 A.2d 879 (emphasis added). In accordance with our discussion thus far, we point but that we do not share in the trial judge’s opinion that Md. Rule 5-1008 is necessarily dispositive in this case.

Thus, we emphasize that we reach our decision on this issue without application of Md. Rule 5-1008. Nevertheless, even if it were found to be applicable, we think that the trial judge misinterpreted its application as it pertained to the facts of this case. The issue before the trial judge in the present case was more akin to a condition of fact to be decided by the judge rather than a determination for the jury as to whether a document actually existed. Whether there existed a document purporting to be the warrant was not in question; rather, the issue pertained to the conditions of fact as to whether the warrant was signed and dated.

In support of this assessment, we point to several instances whereby it is indicated that the existence of the document had in fact been determined. While articulating his finding during the hearing on the reconsideration of his initial granting of Thompson’s motion to suppress, the trial judge said: “I find that the State has proven by a preponderance of the evidence, and I frankly wasn’t in too much doubt before that this document is a search warrant.” The trial judge then went on to remark that “the issue is whether it was executed or not.” We observe that such language is clearly inconsistent with any question as to whether the document actually existed. Whether a document was signed only can become an issue once it has been established that a document actually exists. As we have already mentioned, a discussion ensued during trial regarding the search warrant, at which time the trial judge made no new determinations, but rather” elucidated his prior ruling regarding the search warrant as it pertained to the suppression of evidence.

At that time, the trial judge stated: “We know it existed in blank form. That has come into evidence. The question is whether it existed in an executed form.... ” The language used by the trial judge on this matter ⁵¹⁹ indicates to us that it was not the actual existence of the warrant that was in question, but whether that warrant had been signed. We would consider such a question to be a condition of fact that would have been appropriately determined by the trial judge during a suppression hearing In Duggins v. State, 7 Md.App. 486 , 256 A.2d 354 (1969), the appellant challenged the legality of the arrest warrant on which his arrest was based and demanded its production so that the court, in assessing the constitutional validity of the arrest, could pass on the legality of the warrant.

The State declined to produce the warrant, taking the position that the testimony of the federal agents that they had a valid warrant in their possession at the time of the arrest was sufficient evidence of itself to demonstrate the validity of the arrest. Id. at 487-88 , 256 A.2d 354 . The trial court agreed with the State’s position, and the jury subsequently convicted the appellant. Challenging the existence of the warrant, the appellant contended “that if the warrant existed at all, it quite possibly was not properly completed and was therefore legally defective.” Id. at 490 , 256 A.2d 354 .

Reversing and remanding, we wrote: Under these circumstances, we think it evident that the State cannot overcome the challenge by producing only the testimony of those who procured the warrant to the effect that it did exist and that it was a lawful warrant. Of course, whether the warrant was lawful or not is a matter of law for the determination of the trial judge, a function which he manifestly cannot perform unless he reviews the warrant in light of the objections made to it or, if the warrant is shown to be unavailable for proper reasons, by considering secondary evidence of its existence and contents. As the trial judge followed neither course, we hold that he erred in finding appellant’s arrest to be lawful. Id.

(emphasis added). Our decision in Duggins was made on the basis of the best evidence rule, as we found that the original warrant itself was the best evidence of the true contents of the warrant. Al ⁵²⁰ though we are not directly interested in the best evidence rule in the present case, we nevertheless think that the language we quoted from Duggins is instructive in this case. Having just raised the issue, albeit in passing, we cannot resist our temptation to address briefly the best evidence rule as it pertains to the instant case.

Although not raised by either party to this appeal, and thus not a consideration in our decision, for the sake of completeness we elucidate why the so-called “Best Evidence Rule,” which is more appropriately referred to as the “Original Document Rule,” Thompson v. State, 62 Md.App. 190, 208 , 488 A.2d 995 (1985), is inapplicable here. We have said that the Rule applies as follows: “[I]n proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent.” State v. Brown, 129 Md.App. 517, 522 , 743 A.2d 262 (1999). We have said that, in regard to the Rule, “[a]ll that is required ... is that the best obtainable evidence be produced.” Thompson, 62 Md.App. at 212 , 488 A.2d 995 . On this point, we note that it was verified during the suppression hearing in the instant case that the original warrant was unavailable.

It was not established that this was a result of the serious fault of the State. “Under the circumstances, secondary evidence is always to be preferred over no evidence at all.” Id. at 213 , 488 A.2d 995 . Additionally, in Brown , we said that “the rule does not apply to exclude evidence offered to show the existence, execution, or delivery of a writing, recording, or photograph.” Brown, 129 Md.App. at 522-23 , 743 A.2d 262 (citation omitted). Here, it is not the contents of the warrant that are being contested, as appellant claims no inaccuracies within the writing itself. Rather, he challenges the validity of its execution.

On this point, we said the following in Brown : During the suppression hearing, defense counsel suggested to the court that she was attacking the authenticity of the warrant as well as its existence when she suggested that ⁵²¹ the warrant had “not [been] properly completed.” The issue sought to be raised by defense counsel by her protestations was not one concerning the contents or terms of the warrant but rather one of whether it was properly issued. That, to be sure, is a totally different type of evidentiary problem. That is an authentication problem and not a “Best Evidence Rule” problem, and dispensing with authentication does not necessarily dispense with production, just as dispensing with production does not dispense with authentication. See 4 J. Wigmore, Evidence (Chadboum rev. 1972) §§ 1187-88 p. 430.

The authentication of a search warrant, that is, the proof of its valid issuance, may be proved by evidence other than the production of the document itself, such as the proffered testimony of the police officer who served the warrant. 6 This type of problem has nothing to do with the “Best Evidence Rule,” which is concerned only with the content or terms of the writing, not with the validity of its issuance. See Thompson, 62 Md.App. at 210 n. 2, 488 A.2d 995 . Brown, 129 Md.App. at 528 , 743 A.2d 262 . Another case helpful to us is Campofreda v. State, 15 Md.App. 693 , 292 A.2d 703 (1972), which looked to our decision in Duggins , but did not deal directly with the best evidence rule. 7 Evidence seized pursuant to a search warrant led to appellant’s convictions of various narcotic violations involving possession and distribution.

The affidavit for the search warrant was unsigned and not notarized, and the warrant itself was unsigned as well. Id. at 698-99, 292 A.2d 703 . Appellant challenged the validity of the search warrant, and we ultimately reversed the convictions by the trial court. ⁵²² Reflecting upon circumstances similar to those with which we are presented in the instant case, we wrote: We fail to perceive how the trial judge could pass upon the validity of the search when neither the warrant nor a completed copy was offered into evidence. The “copy” which the court read appears to us to be no more than a blank copy which may have been completed by [the alleged issuing judge].

It may be that [the alleged issuing judge] made deletions, alterations, modifications or interlineations on the original warrant, which deletions, alterations, modifications or interlineations could have materially affected the resultant warrant. It also is possible, as counsel for the appellant suggests, that the date of the warrant was different than that stated by the trooper. ^ jfc He Here, the paper writing offered as the “warrant” was defective and as a result has produced confusion, waste and injustice. There is nothing in the record before us, other than the trooper’s testimony, that the warrant was actually issued, and the trooper’s testimony is not sufficient to elevate an unsworn, unsigned copy to the status of an original warrant. Id. at 699-700 , 292 A.2d 703 (footnote omitted).

We concluded in Campofreda : It was impossible for the trial judge to have determined as a matter of law that the search warrant involved in the instant case was legally proper when he did not see the warrant. It is true that the trial judge had the opportunity to review what was purported to be a “copy” of the original, and perhaps under proper circumstances that “copy” could, by sufficient other secondary evidence, be held to be a proper substitute for the original.... In the posture in which this record reaches us, however, it is apparent that the appellant’s rights have been violated by the failure of the State to produce the original warrant for the trial court’s re ⁵²³ view.... 8 Id. (citation omitted).

We find on this issue that it was the task of the trial judge to determine whether the warrant was signed by an issuing judge. It certainly can be correctly asserted that the basic concept as to whether the warrant was signed is a factual determination. Nonetheless, this differs from the typical factual determination that generally goes to the jury. We have before us a motion to suppress evidence claimed to have been unlawfully obtained.

Thus, we are presented with questions as to the admissibility of evidence and the validity of a search warrant pursuant to which such evidence was based. Such matters are preliminary findings to be made by the trial judge, regardless of whether it be at trial or prior to trial, and