318 N.E.2d 442 | Ohio Ct. App. | 1973
This appeal presents highly important questions involving efforts by law enforcement officials of the city of Cleveland to halt the flow of obscene literature within its boundaries. Through seven assignments of error, appellants assail practically every facet of these efforts, including the enabling legislation, the procedural steps taken to secure the restraints, and finally the restraints themselves.
On March 27, 1972, a Cleveland city prosecutor and several police officers entered the bookstore of the appellant Joseph Ricco, on orders of the chief police prosecutor to search for and confiscate obscene books and magazines. After identifying themselves they began to "thumb through the magazines trying to determine what they thought could possibly be pornographic," and upon concluding their examination seized 59 magazines and paperback books, all of different titles. Relevant to the validity of the seizure, it is noteworthy that the police were not acting pursuant to any search or arrest warrant, nor was the seizure incident to any arrest, nor did the police purchase any of the publications, and finally there is no evidence that the appellant Ricco explicitly consented to the seizure. The record is also silent as to what percentage of *59 appellant's entire inventory the 59 publications represented, although it appears that they did not confiscate all the items on display. Thus, it is impossible to determine whethther the seizure can be considered "massive."
Three days later, on March 30, 1972, the Cleveland Law Director filed this action under the provisions of R. C.
The hearing was brief and perfunctory. Police prosecutor Chandler was called to testify as to the circumstances surrounding the search and seizure. On this foundation, the city then introduced over defense objection six of the publications. The remaining 53 items were not offered apparently because they were regarded as being substantially the same as those introduced. Except for the six books and magazines, no other evidence was offered to establish their allegedly obscene character. At the conclusion of the hearing, the trial court ruled from the bench "that on the basis of the [six] exhibits * * * there is probable cause on the part of the complaining party to believe that a violation of Revised Code
On April 10, 1972, counsel for the appellant and the city prosecutor both appeared in court for a trial on the permanent injunction. The only evidence introduced at this hearing was the remaining 53 publications not previously offered, together with a stipulation incorporating the testimony *60 and exhibits introduced at the prior hearing on the temporary order.
Within the statutory prescribed period of five days, the trial court issued a permanent injunction of broader scope than the restraining order. It enjoined the sale and distribution of the seized publications as well as "any material which constitutes obscenity in that the following three elements exist and coalesce:
"(1) The dominant theme of the material taken as a whole appeals to a prurient interest in sex;
"(2) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and
"(3) The material is utterly without redeeming social value.
"(4) Material appeals to a prurient interest in sex when it has a tendency to excite lustful thoughts or appeals to a shameful or morbid interest in nudity or sex. `Appeal to prurient interest in sex' is not limited to material which causes lustful acts (rather than only thoughts) or which causes action reprehensible to society. An appeal to voyeurism constitutes an appeal to a prurient interest in sex.
"(5) Material affronts contemporary community standards relating to the description or representation of sexual matters where the material affronts the standards of the average person of the national community. Neither the standards of the most permissive or liberal localities or segments of society, nor the standards of the most restrictive or conservative localities or segments of society constitute the national community standard. It is the standard of the national community, rather than the community itself that must be affronted, and such standard may be affronted even in the absence of evidence that any member of the community was or could have been personally affronted.
"(6) `Social value' resulting from the fact that material is obscene does not constitute redeeming social value. Redeeming social value is `social value' existing for some use or purpose other than obscenity but such social value may be present in material despite the fact that it contains all the attributes of obscenity. *61
"(7) Where material is offered for sale because it constitutes obscenity and for use as erotica through an appeal to the erotic interest of the purchaser, the existence of redeeming social value with respect to the use of the material for some other purpose (in a different context) is not available as a defense to such seller (or panderer).
"(8) Pandering of obscenity is the business of purveying pictorial or graphic matter openly advertised to appeal to the erotic interest of customers or potential customers by either blatant and explicit advertising or subtle and sophisticated advertising.
"(9) `Medium core pornography' as well as `hard core pornography' constitutes obscenity that is not within the area of constitutionally protected speech or press."
The court cited two statutory schemes as the basis for this decree. In addition to Chapter 2905, Revised Code, the court relied upon Chapter 3767, Revised Code, to hold that the bookstore of Ricco's constituted a nuisance.1 We cannot avoid commenting on the unusualness of this finding, since at no point during the proceedings did the prosecutor ground his claim on a nuisance theory nor did he make any effort to comply with the provisions outlined in Chapter 3767, Revised Code.
However, this did not represent the only bizarre aspect of this case. On the same day that the court entered this order against the appellant Ricco, the prosecutor took the unusual step of filing an amended complaint for the purpose of joining seven additional bookstore proprietors as co-defendants. Like the original complaint, the amended pleading included a request for a temporary restraining order, and on April 17, 1972, the court conducted a hearing on the interlocutory order. Officers Vrana and Pope testified that they visited the bookstores of the seven new defendants on April 10 and 11, 1972, in much the same manner as before, and seized a total of 23 magazines. As before, the police neither acted on the authority of any warrant nor did they arrest any of the clerks and seize the *62 publications incident thereto, nor did they purchase them.
The Law Director of Cleveland filed this action under R. C.
By their first assignment of error, appellants urge that *64
this court assume the burden of judicial review and strike down R. C.
The vagueness argument has its roots in the Fifth and Fourteenth Amendments Due Process clauses. As the court stated in Giaccio v. Pennsylvania (1966),
In asserting that the Ohio statutory scheme must succumb to the doctrines of overbreadth and vagueness, appellants focus narrowly on subsection (A) of R. C.
This federally mandated definition was recently supplanted byMiller v. California,9 which announced new guidelines for defining the limits of the state's power to curb obscene expression. The majority of the Supreme Court approved the following three-pronged formula: material is obscene if (1) taken as a whole, it appeals to the prurient interest in sex; (2) it portrays sexual conduct in a patently offensive way; and (3) taken as a whole, it does not have serious literary, artistic, political, or scientific value.10 Because the instant appeal in one respect involves the continued validity of the injunction issued by the trial court below, we believe that the Ohio statute must be examined under the recent Miller decision.
The first element of the Miller test is obviously met in R. C.
Appellants might argue that the second element in the Miller
test is missing from R. C.
The third element of the Miller test is met in subsection (4) of R. C.
On the basis of this interpretation we must reject appellants' arguments that R. C.
The concept of mootness as a limitation upon appellate review has traditionally been invoked in those cases where events occurring during the pendency of the appeal so alter the posture of the controversy as to make further judicial response ineffective and inconsequential. For example, in Sakacsi v.McGettrick (1967),
In turning to the merits of this assigned error, the first point of inquiry must be the statute authorizing injunctive relief against the sale and distribution of obscene material, R. C.
It may also be suggested that these ex parte restraints on sale and distribution cannot really be supported on those grounds which have historically justified the issuance of temporary restraining orders. The temporary restraining order originally was developed to overcome the inherent slowness of the judicial process in hearing evidence and deciding the issues in an adversary context. Without some device for maintaining the status quo, irreparable harm can occur before a final resolution of the legal issues. Even assuming generally that the exploitation of obscene material has harmful and antisocial effects and that it debases and distorts "a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality,"12 it is extremely doubtful whether the interim sales would so irreparably harm the public as to warrant the drastic step of enjoining sale and distribution prior to an adversary hearing. At least in the sparse record before us the prosecutor certainly did not assert nor did he demonstrate any urgency justifying ex parte relief. Moreover, the need for these temporary restraints is further diminished because of the time limitations mandated in R. C.
In Paris Adult Theatre I v. Slaton, an obscene film case, the Supreme Court observed that the "films, obviously, are the best evidence of what they represent," and, consequently, the court held that the prosecutor was not necessarily required to introduce additional expert evidence *70 that the materials were obscene.15 Although a distinction can be drawn between a film and a book or magazine, it is mainly one of form, rather than substance. Both are mediums for conveying mental impressions and for stimulating thought. In terms of the fact finder's ability to comprehend the nature and context of these impressions and to evaluate their effect upon the human intellect, we perceive no essential difference between the two mediums. If a court or a jury needs no assistance from an expert witness in determining whether a film is obscene, it likewise will require no such assistance in evaluating material in print.
Further, the Miller decision recognized that precisely what is "patently offensive" or appeals to the "prurient interest" is basically a question of fact, and that our adversary system has traditionally permitted lay jurors drawing on their community standards, and guided by instructions on the law, to make the ultimate findings of fact.16 Thus, based upon the Paris andMiller decisions, we cannot hold that a prosecutor must produce expert witnesses to establish the obscenity of seized materials.17
As a civil action, a proceeding under R. C.
"All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence or succession or series oftransactions or occurrences and if any question of law or fact common to all defendants will arise in the action." (Emphasis added.)
Even assuming that joinder is otherwise available once the court has entered a final judgment against the first party defendant, there is not the slightest shred of evidence indicating that the defendants shared in a common transaction or occurrence. As far as we can perceive, the defendants were eight different, independent bookstores, which shared the distinction of selling allegedly obscene publications. This common denominator does not furnish a sufficient nexus to warrant a joint trial of the defendants. The prosecutor chose to rest his case on the seized magazines and books themselves, without extended evidence relating to the elements of obscenity. And, save for a film which the court refused to admit, the appellants presented no evidence in defense. Thus, there was not the confusion and delay which can attend the complex amalgamation of unrelated facts and issues in a multifarious suit.18
A. The Need for a Warrant
In Roaden v. Kentucky22 a sheriff viewed a sexually explicit film at a local theater. He then seized the film and arrested the theater manager for violating the state's obscenity statute. Because the seizure and the arrest were accomplished without the authority of a warrant, the theater manager moved to have the film suppressed as evidence at the trial. The court overruled the motion and, upon appeal of Roaden's conviction to the state's high court, this ruling was upheld on the ground that the seizure was incident to a lawful arrest.23 Upon further appeal to the United States Supreme Court, the defendant's contention that the warrantless seizure was unreasonable under the Fourth and Fourteenth Amendments was finally sustained. The Supreme Court held that such seizure, in the absence of a warrant describing with particularity the "things to be seized," was a form of prior restraint upon the right of expression. Further, the court noted that this case, involving a film regularly scheduled for exhibition at a commercial theater, presented no exigent circumstances, such as the risk of the film's destruction, which might otherwise justify a warrantless seizure.
With respect to warrant requirements of the Fourth Amendment, it must be remembered that the right guaranteed by this Amendment is a personal one, enjoyed by each citizen. As has been repeatedly stated, the Fourth Amendment's historic purpose is to protect the personal security of the individual in his home and in his place of business *74 from unwarranted and arbitrary government intrusion.24 It should make little difference, therefore, whether a bookstore proprietor is subjected to a "massive" seizure of his stock in trade or simply one of quantitatively smaller proportions, designed to secure sample copies for future prosecution. In either case, there is governmental intrusion, and the personal security of the individual is disturbed. In either case, Fourth Amendment rights of the individual are threatened.
We hold then that the Fourth Amendment requires that law enforcement officials must secure a warrant even where their purpose is to gather sample copies of books and magazines for use as evidence in a subsequent prosecution.
It, of course, might be argued that Roaden might be distinguished on the grounds that there exists exigent circumstances in the case at bar, which the Roaden court found lacking in the case of regularly scheduled films. However, the burden of proving such circumstances has always been allocated to the party seeking the exemption from the warrant requirement.25 This burden was not met by the appellee city in the instant case. Nowhere in the course of the proceedings does the record disclose that the appellee attempted to establish that the exigency of the moment required seizure of the materials by the police prior to securing a search warrant.
Further, while the record does disclose that in some of the bookstores an individual may have consented to the seizure of materials, there is no conclusive evidence that anyone withauthority to do so voluntarily consented to any of the searches or seizures.26
Consequently, we must conclude that the warrantless searches and seizures conducted at the stores of the eight defendants were unreasonable and violative of the Fourth Amendment. The trial court erred, therefore in not granting *75 the motion to suppress the material which was the product of these illegal searches and seizures.27
B. The Need for a Prior Adversary Hearing
Another recent case, Heller v. New York28 focuses on the need for an adversary hearing as a prerequisite to the issuance of a warrant. In Heller, the petitioner was arrested and convicted for exhibiting an obscene film. The film introduced at trial had been seized by police pursuant to a search warrant that had been issued ex parte by a magistrate who had personally seen the film. However, there was no adversary hearing, either before, or immediately after the seizure, to confirm the magistrate's finding of probable cause. It was only at the criminal trial itself, 47 days after the arrest and seizure, that the films received adversary scrutiny. Petitioner appealed his conviction to the Supreme Court, contending that the seizure was unconstitutional in the absence of a prior adversary hearing.
The Court rejected this argument on the basis of the following facts disclose by the record: First, the purpose of the seizure was to preserve a copy of the film as evidence, not to subject it to a "final restraint," in the sense of being enjoined from exhibition or threatened with destruction; second the State of New York stood ready to grant immediate adversary hearings on pretrial motions challenging the seizure; third, the petitioner failed to request a prompt adversary hearing after the judicially authorized seizure, nor did he attempt to show that the seizure of the copy prevented continued exhibition of the film. Against this factual background, the Court sanctioned a procedure which, it concluded afforded adequate protection to the First Amendment guarantees while avoiding the burden of a prior adversary hearing.29 *76
Thus, with respect to the need for an adversary hearing prior to the seizure of any allegedly obscene material, no extended discussion is required to conclude that appellants' argument has been rejected in principal if specified safeguards are present as enunciated by Heller v. New York, supra. As the above summary indicates, where (1) the material is seized to preserve it as evidence and not for the purpose of imposing a final restraint, and (2) a prompt adversary hearing is available, First Amendment freedoms are sufficiently protected where the seizure is preceded by the determination of probable cause made by a neutral magistrate prior to the issuance of a search warrant.
Therefore, because the order of the trial court is based upon evidence which should have been suppressed, and because it contains a permanent injunction which is unlawfully broad, the order and decree issued on May 22, 1972, by the Court of Common Pleas is reversed and judgment granted for defendants appellants. Appellants are discharged.
Judgment reversed.
MANOS, C. J., and KRENZLER, J., concur.
"(A) Where it appears that section
"No person, with knowledge of the content and character of the obscene material or performance involved, shall make, manufacture, write, draw, print, reproduce, or publish any obscene material, knowing or having reasonable cause to know that such material will be sold, distributed, circulated, or disseminated; or sell, lend, give away, distribute, circulate, disseminate, exhibit, or advertise any obscene material; or write, direct, produce, present, advertise, or participate in an obscene performance; or possess or have in his control any obscene material with intent to violate this section; or offer or agree to do any act in violation of this section, or cause any such act to be done by another.
"Whoever violates this section shall be fined not more than five thousand dollars or imprisoned not more than one year, or both, for a first offense, and for each subsequent offense shall be fined not more than ten thousand dollars or imprisoned not less than one nor more than seven years, or both."
"As used in sections
"(A) Any material or performance is `obscene' if, when considered as a whole and judged with reference to ordinary adults, any of the following apply:
"(1) Its dominant appeal is to prurient interest;
"(2) Its dominant tendency is to arouse lust by displaying or depicting nudity, sexual excitement, or sexual conduct in a way which tends to represent human beings as mere objects of sexual appetite;
"(3) Its dominant tendency is to arouse lust by displaying or depicting bestiality or extreme or bizarre violence, cruelty, or brutality;
"(4) It contains a series of displays or descriptions of nudity, sexual excitement, sexual conduct, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient interest, when the appeal to such interest is primarily for its own sake or for commercial exploitation, rather than for a genuine scientific, educational, sociological, moral, or artistic purpose.
"(B) `Nudity' means the showing, representation, or depiction of human male or female genitals, pubic area, or buttocks with less than a full, opaque covering, or of a female breast with less than a full, opaque covering or any portion thereof below the top of the nipple, or of covered male genitals in a discernibly turgid state.
"(C) `Sexual excitement' means the condition of human male or female genitals when in a state of sexual stimulation or arousal.
"(D) `Sexual conduct' means masturbation, homosexuality, lesbianism sadism, masochism, natural or unnatural sexual intercourse, or physical contact with a person's clothed or unclothed genitals, public area, buttocks, or, if such person is a female, a breast.
"(E) `Material' means any book, pamphlet, ballad, printed paper, phonographic record or tape, motion picture film, print, picture, figure, image, description, or other tangible thing capable of being used to arouse interest through sight, sound, or in any other manner.
"(F) `Performance' means any motion picture, preview, play, show, skit, dance, or other exhibition performed before an audience."
