*1 Dist., Div. Mar. 33155. One. No. Second 1979.] [Crim. PEOPLE, Plaintiff and
THE Respondent, al., Defendants and ARNO et
NORMAN Appellants.
Counsel Abelson, Harris & Brunon and Jonathan for Defendants Bailey Lappen and Appellants. Pines,
Burt Eskin, C. Chief Assistant City Attorney, George City Noel Robinson, R. R. Ronald Richard M. Attorney, Slipsager, Helgeson McConnell, B. Ward Assistant and Maureen R. City Attorneys, for Plaintiff and City Siegel, Deputy Attorney, Respondent.
Opinion THOMPSON, J. Norman Arno and Leonard Steer were convicted in the court of three counts obscene films with municipal possessing Code, intent to distribute them. (Pen. 311.2.) Their § convictions reversed of the by Los Court Appellate Department Angeles Superior because that court’s conclusion that evidence based a view of upon business defendants which aided premises was use of by occupied by binoculars high obtained. power Because issue of illegally aided view had not at that time been optically addressed in directly California, we ordered the matter transferred to so this court that an of statewide effect be opinion might published.1 1 Wedo not denigrate of the opinion It is well appellate department. exceedingly researched crafted. Our sole reason for not analyzed,. it is a minor adopting with the manner of disagreement expressing controlling principle. in the nature the use of aids (1)
We conclude: optical binoculars, determinative of and the like is not itself telescopes observation; (2) of the in evidence admissibility product or absence of a reasonable factor is the determinative presence primary conduct, or of the whose privacy person property, expectation observed; in the is reasonable (3) documents expectation privacy to which the has here involved is tested extent context person by conduct, or documents to view naked his property, public exposed if the of the aided view is to clandestine eye; purpose optically permit of that which could be seen from a more obvious surveillance aid, without there no is unconstitutional vantage optical point intrusion; and if the aid is to view that which purpose optical it, could not be seen without there is. We recognize special circumstances to life or involving high degree danger property may an aided view and that there be situations in which permit optically may cause to the of a established satisfaction so probable may magistrate that the aided view be authorized a warrant. We do not reach may those latter issues on the record here.
Facts *5 that defendants were a commercial venture operating Suspecting films, the Los conducted Angeles wholesaling pornographic contracts over a of their 10-day of their activities and those surveillance team, Johnson, of the surveillance Officer D. a member James period. from the 200 to 300 distant stationed himself on a Playboy hilltop yards at an located at 8560 Boulevard. His was Sunset vantage point Building of the or seventh floor altitude that of sixth building. approximating of the hill were other No height vantage points remotely approaching Johnson. located closer to side of building facing with the With and his naked and also binoculars starting eye 10-power floor, binoculars, first the “whole Johnson Using surveyed building.” he looked into and a studio within the various offices photography 804 over a of five to hours. The in suite on the six building period drapes window, floor were Johnson could see that eighth Through open. there were in the could other than suite but people identify nothing binoculars, color of their saw Arno and others he clothing. Using handle a a label with a marked box displaying distinctively flip-top millimeter film. of a nude woman. The box contained picture eight into an affidavit observation found its The of Johnson’s way product was to a Officer David K. Weller which magistrate presented signed the search for a warrant with an authorizing connection application Later warrants were also automobiles. suite other premises, were business documents film and various issued. Copies pornographic were executed. when the warrants seized of Johnson’s binocularly
Defendants’ motion
suppress
product
of the warrant
in execution
view and the evidence seized
aided
evidence
introduced in
of the search was
denied. The
product
trial,
at
his
unavailable
Johnson
testimony detailing
being
prosecution.
was, at the
the motion to
his view
prosecution’s
given
suppress
Weller,
instance,
as an
read to the
pornography
jury.
testifying
expert
804 in the
that the
of suite
his
Playboy
gave
opinion
premises
operations,
distribution of
used for the wholesale
sexually
Building
being
the seized film
films. Weller based his opinion upon
explicit pornographic
documents,
entire
the results of the
investigation.
upon
View
Aided
Optically
Some California
have noted but
the issue of the
decisions
finessed
aided
in the
views
context of
validity
optically
protection
the Fourth Amendment
guaranteed by
explicated
right
privacy
S.Ct. 507],
v. United States
We start then supra, invalid evidence Court held States constitutionally United Supreme an electronic FBI amplifying obtained placing by agents all Once and for booth. device outside telephone public recording surveillance, the of search or test” of high the illegality “trespass rejecting not Fourth Amendment people, places. court declared: protects “[T]he or in his own home even to aWhat knowingly exposes public, person But office, Fourth Amendment not a of is protection. [Citations.] subject to an area accessible even in as what he seeks private, preserve U.S. at (389 be constitutionally may protected. [Citations.]” public, L.Ed.2d at 582].) 351-352 p. pp. [19 founded on the
The Katz court rejected prosecution argument of so that booth was constructed glass phone partially proposition be inside it. It said: “But what the defendant could seen [the defendant] was not to exclude when he entered booth intruding sought ear.” (Id.) was the uninvited eye—it of it is
Given state technology, impossible conceptualize today’s aided aural difference between electronically percep- significant legally and remote visual view. As electronic tion and aided bugs optically conversation made it to intrude have upon possible private microphones made in an Orwellian so have modern degree, optics surreptitiously the same sort of visual intrusion. of today’s Employment possible infrared of systems, process, technology sophisticated optical far enhancement carry range eyesight beyond computer image It can that the late unlamented hardly argued activity spyglass. of the break-in to the Democratic National Committee in premises would have been less intrusive had the Watergate sought complex any after results been achieved modern located outside by technology building. into constitutional intrusion the reason federal against right is
able by specific right privacy amplified privacy expectation I, 1, of the California Constitution. The article section guaranteed by is motivated concern California constitutional against guarantee encroachment free society’s accelerating upon personal contemporary surveillance and data collection. dom and caused increased security 94, 533 P.2d Cal.3d 774-775 v. Davis (White meet here involved. It tailored to the situation seems 222].) virtually view of the surveillance as We thus the test validity turning or heard is that which is conducted whether that which is perceived upon used the means with a reasonable upon expectation privacy or heard is that which is viewed it. So view or hear perceptible long *7 ear, the seen or heard has no or unaided to the naked eye person has occurs. Because he no what reasonable privacy expectation use reasonable governmental may privacy, authority expectation or of whatever to aural enhancement aids visual type technological However, extends the reasonable available. privacy expectation 512
which cannot be seen the naked or heard the unaided ear. eye by While a use device to avoid governmental authority may technological detection of its own law enforcement use not the same activity, may device to invade the protected right.
The distinction is well elucidated in United States v. Kim Hawaii (D. 1976) 415 1252. There the federal district court was faced with F.Supp. of evidence of two enhanced view. FBI admissibility types optically had used a into agents the interior of an high powered telescope peer into which no one could see without artificial aid. Other apartment agents had used binoculars watch into which could see with balcony anyone Katz, the naked the court found that the observation eye. Relying upon into interior of the invaded a reasonable apartment expectation but observation not. privacy activity might balcony Cases cited for a not result do for contrary support proposition are Rather, which cited. binocular or other they approve optically aided searches under circumstances where a reasonable expectation not established because the observed could be seen privacy activity others without aid. v. United States Cir. (10th 1968) optical Fullbright F.2d 432 392 involves observation of bootlegging activity through of a door barn from a of 75 distance to 100 F.2d at (392 open yards. 435.) Commonwealth v. 177 A.2d (1970) p. Hernley Pa.Super. [263 904, 48 A.L.R.3d with view is concerned an through open 1172] window from distance of about 35 feet. A.2d at (263 905.) p. People Court (Stroud) Superior Cal.App.3d Cal.Rptr. [112 764] validates an observation of stolen automobile an officer parts by using binoculars from a where the were in a back helicopter yard parts open all to see. at (37 839.) v. Maxwell Cal.App.3d p. People involves a view binoculars of Cal.App.3d through 95] on a street. (78 128.) activity public Cal.App.3d p.
Here the seen Johnson’s binoculars through activity 10-power within suite was not observable to It an aid. anyone using optical was as much from the uninvited as was Katz’s conversation protected eye from the uninvited ear. We hence conclude that the court municipal erred in defendants’ motion to of Johnson’s denying suppress product observations.
Prejudice observation invalid of Johnson’s The constitutionally product but not a warrant in search into the affidavit its found support way The Johnson made. the observation was manner in which fact of the defendants received in the was included against observation testimony for the of the basis The Johnson observations expert trial. part used for 804 were at suite wholesaling that the being premises opinion film. pornographic Johnson’s based warrant obtained search part upon
Conceivably
from it.
evidence were excised
if the infected
would be valid
observations
valid,
evidence
there is considerable
warrant is
supporting
If the search
whether the record
However,
to determine
our task is
the convictions.
had the
doubt
the conclusion
a reasonable
jury
beyond
supports
the Johnson observations
expert
denied
been
product
them,
have found defendants
it would still
based
upon
part
opinion
that the strict test
dimension so
error here is of constitutional
The
guilty.
U.S. 18
error is
of harmless
(Chapman
applicable.
California
find the
We cannot
We need not issued a neutral warrant view be authorized an aided may optically We need not determine cause. upon showing probable magistrate material here involved once warrants offending search validity for the a function That is from the affidavit. appropriate excised is *9 reversed, court on retrial. Because the must be we do municipal judgment not reach other issues raised by appellants.*
Disposition The court are reversed. judgments municipal Lillie, J., P. concurred. Acting
HANSON, J. I dissent.
The as a basis its reversal opinion focuses majority apparently defendants’ “reasonable and concludes that the expectation privacy” trial court erred in the defense motion to denying suppress product Officer Johnson’s binocular-aided observations of suite 804 in the commercial structure at 8560 Sunset Boulevard on the Sunset Strip known as the Playboy Building.
“A
under section 1538.5 to
evidence is a full
proceeding
suppress
on the issues before the
court
as finder of fact.
hearing
[municipal]
sitting
witnesses,
The
to
resolve conflicts
power
judge
[Citations.]
credibility
in
inferences,
evidence
draw
factual
is vested in the
testimony, weigh
trial court. On
all
favor
exercise of that
appeal
presumptions
proper
trial
court’s
power,
or
findings—whether express
implied—must
be
if
substantial evidence.
upheld
supported by
v.
(People
[Citations.]”
Court
406,
(1975)
617,
Cal.3d
Superior
(Keithley)
Cal.Rptr.
[118
It clear is that there no is formula for the determination of “reasonable ness,” and each case must decided on its own facts and circumstances “the which a defendant including degree privacy may reasonably in a enclosure him.” v. Berutko expect given occupied (People 84, 217, 71 Cal.2d 453 P.2d are Unless we now in 721].) [77 business, the fact I evidence, conclude there was substantial direct finding 2We feel the nature of the attack in out compelled by dissenting opinion spell response:- 1. answer is dissent’s required Some charge. we 2. do endorse “victimless crime.” Certainly 3. is involved us. question How escapes Moreover, issue significant. 4. constitutional is must be addressed in light 5. Ultimately precedent. course clear. 6. is precedent Certainly that, (See our is New 7. result Funk & Cassell’s Knowing compelled. Wagnall's Dict., 408, J., German with fn. 6 of dis. p. opn. Douglas, conjunction Ginsberg 212-213, 1274].) New York 390 U.S. 655-656 L.Ed.2d 88 S.Ct. indirect, defendants the trial court’s finding express support *10 suite 804 of while in a did not “reasonable expectation privacy” possess that Officer and its under the of circumstances finding totality implied unreasonable of did constitute Johnson’s use the binoculars police the circumstances. conduct under States that the of Katz v. United
I
conclude
neither
case
(1)
further
of White
L.Ed.2d
88 S.Ct.
nor the case
507],
U.S.
(1967) 389
[19
in
94, 533 P.2d
cited
the
This not a case a is Tom” officer police aimlessly surveying “peeping a “whole with the aid of for Nor I binoculars kicks. do building” just this case as one on “Orwellian” or in dimensions taking perceive any way other than that case. A “Watergate” equated hysteria generated by more detailed treatment of total the use circumstances surrounding in binoculars is warranted order to the entire case adequately place into A facts included proper perspective. summary pertinent warrants, affidavits in of four search support separate testimony Steer 1 Defendants Norman Arno and Leonard were in a seven-count charged misdemeanor in the court with and municipal complaint willfully, unlawfully knowingly California matter in the form of mm. film for distribution and into obscene bringing eight 311.2, (The violation Code law. exhibition in of Penal section California’s titles obscenity in each are follows: count charged “Teenage for film count I: Pussy #1"—“Baby Rectum”; II: “H. count “H. H. count H. III: #5—Raped #5—Raped Face”: Rectum”: Scouts”; # John & The V: Erotica—Alex count IV: Girl count 17—Big “Orgy “Playmate I”; and count VII: “Erotic is count VI: “Erotic Hands—Part Livingstone—Part 2”: II.”) a motion. following Hands—Part Count I was dismissed lengthy pretrial at the of the People’s trial Feldstein was dismissed close codefendant Following jury declared as to defendant to Penal 1118.1 and mistrial was case Code section pursuant (IV, VI three and Defendants and Steer were each convicted of counts Arno Sinopoli. VII). department Arno their convictions to Defendants and Steer appealed appellate which, (which rendered an opinion court as noted the majority opinion, superior on the sole ground conviction ordered published) reversing judgments without search made binoculars through observations of defendants officers to California Pursuant' warrant violated defendants’ reasonable expectation privacy. Court, 62(a), to this hearing rule we ordered the cause transferred court Rules decision. motions to evidence lengthy (which and the denied), suppress at the trial are as follows: testimony jury substantially
The Facts 27, 1975, On defendant Steer arrived at 6760 Selma Avenue in August California, unlocked suites No. No. Hollywood, began cardboard boxes between the two offices. large carrying Upon leaving location, Street, he drove to 1131 Alta Loma Los Angeles County. *11 28, 1975, On defendant met driver van Steer the of white August 6760 Selma and off-loaded cardboard boxes into office No. 1. He large then took three from more boxes the trunk of his vehicle and carried address, them into office No. 1. When the white van left Selma it went Brea, to 1138 North film La California. This location is Hollywood, which hardcore and film. When laboratory processes nonsexually explicit address, the individual exited North La he Brea was a large carrying cardboard box which held about 25 mm. film boxes which he eight placed the van. He inside then drove to 8560 Sunset Boulevard where he removed the box and entered the to the floor. building going eighth
On 2, 1975, defendant Steer was seen September Sunset leaving and was followed to the Selma location. Once there he unlocked directly offices No. 1 and No. 5. Later on that he same loaded four day large cartons from office No. 1 into the back a station which then wagon Melrose, went to the Drake Adult Theatre at 7566 California. Hollywood, In one of the cartons Officer David Weller an saw mm. film box eight with title “Hard Core Girls.” The station then wagon proceeded the Ventura Adult Theatre located Street on Vanowen in North Holly- wood where three cartons were taken from the station into the wagon cartons, theatre. Two mm. films delivered in one of “Hard Core eight Girls, “HH5, Rectum,” Adults and were Only” Raped purchased by the next police day.
On defendants Amo and who were known September Sinopoli officers as distributors films were seen at 6760 pornographic Selma Avenue. left that location in Arno’s Cadillac No. 862 (license They driven Arno went LRJ) defendant and to the by Building, Playboy structure, commercial at 8560 Sunset Boulevard on the “Sunset Strip.” The car leased defendant under name was Arno Distribu- Stacey tors, 1131 Alta Loma.
Officer James D. Johnson who was Officer David K. Weller in assisting surveillance his and Arno followed the defendants in a Sinopoli vehicle and took an the street observation across and up point separate on a hill the 6th north level with or 7th building approximately structure, of that 200-250 He floor watched approximately yards away.2 lot next to west side and the front of the parking building until, floor, and checked each of the floors on the he saw building eighth defendants Arno. Officer Johnson able to Amo was Sinopoli identify the aid without of binoculars could them see Sinopoli moving in front of and could about windows color their glass large identify features, Since he unable to out their make facial he used clothing. binoculars to his unaided identification of the individuals he verify had the Selma to the observed location previously driving Sunset address and in lot west of that location. With the aid parking of wide binoculars he could see their features (10 50) and into angle the offices and where next to the beyond point standing, *12 window, made, and handled, observed calls film and a phone being being check. He saw defendant Arno millimeter box with a open flip top eight nude woman on cover which similar the one he had appeared seen at the Ventura Theatre. previously
Officer Johnson watched the defendants from 11 in the until 5 morning afternoon, in the which time on the windows were during drapes Officer Johnson advised Officer Weller via car radio that open. police defendants Arno and were in offices located at the last Sinopoli present two windows in the northeast corner of From conversations building. radio, Officer with Johnson over Officer Weller was able to police determine from Johnson’s observations and his own on floor the eighth defendants and Arno were suite 804. The door to suite Sinopoli bore the 804 Inc.” legend “Stacey, 5, 1975,
On Amo and were seen at the defendants September Sinopoli Selma location boxes office No. 1 and them in removing placing 5No. and office boxes from office No. 5 and them in removing placing No. Cadillac, office 1. Defendant Arno also removed some boxes from his LRJ, license No. 862 and them into office No. 1. placed 2 Officer he Johnson stated have been much closer. He have may been as close may as (about line) 200 to 250 feet 85 on a direct rather than 200 to paces 250 yards. He testified street is 50 feet wide. There is another 50 to 100 feet feet for that “[t]he restaurant. Another 50 to feet But bank. up you’re be a lot going, might shorter.” facts, No. Officer Weller wrote search warrant on the
Based foregoing 5, 1975, and it was signed by during evening September at the after He served the warrant Eric Younger just midnight. Judge 1 a.m. and 3 a.m. Pursuant to the various locations and vehicles between warrant, were seized from office three Rectum” copies “HH5—Raped Selma; were taken of the interior of office No. No. 1 at 6760 photos Selma; numerous mm. film boxes and officers observed eight police intercourse, covers had acts whose sight photographs depicting plain were 35-50 In office No. 5 there oral sodomy. pasteboard copulation with numerous labels with containers explicit photographs gum sexually film. One of the mm. cover individual boxes used eight completely “PM-17” which the notation labels contained containers gummed Scouts” Holmes and Girl John stands for #17—Big “Playmate IV). (count Loma, Selma, went to 1131 Alta Officer Weller
After searching of the search warrant for defendant Arno and informed apartment Cadillac, Arno 862 LRJ. Defendant license No. 8560 Sunset if Thereafter, Weller asked defendant Arno Officer his vehicle. unlocked 804 and with the suite to 8560 Sunset Boulevard he would come keys and a half for defendant Arno After an hour he to do so. waiting agreed him, entered location. to locate unable forcibly being seized, a number numerous documents Once inside suite admitted was a form evidence. those were admitted into which Among Film Distribu- the letterhead letter inside an “Stacey bearing envelope *13 were 3 mm. film with the letter Tucked inside tors.” eight envelope the letter It was that Rectum.” box covers for stipulated “HH5—Raped found in suite Based on the documents defendant Sinopoli. signed Avenue, the conduct of the Selma 804, at 6760 the films found 26, 1975, and between individuals under surveillance September August the Selma and Sunset that 5, 1975, Weller formed Officer opinion used for locations wholesaling sexually explicit purpose being Further, outfits. retailers, and mail order other wholesalers films to defense The mm. films were distributed. being graphic eight only sexually distribution, sale and Weller was an that Officer expert stipulated of pornography. availability learned from Gene Robert Peters 1975 Officer McKay,
In October Airlines, films could for United pornographic airfreight supervisor one a of six cartons in the corner of tear waiting seen group through cartons, 659-6257, number on each of the A to be telephone picked up. Loma, 217, Alta and was Arno of 1131 to Norman apartment belonged use under that subscriber’s name in An October 1975. individual driving station six cartons and was observed to arrive at wagon picked up 1131 Alta Loma Drive. thereafter codefendant Steer left that Shortly location Cadillac license No. 862 LRJ Arno’s (defendant car) driving 942-946 Seward in Codefendant Steer took the six cartons Hollywood. first at the observed United Airlines terminal out of the trunk of the Cadillac and them into vault No. 209. on Based these observa- placed tions, Officer Peters search warrant No. 11990 for 942-946 prepared Seward, vault No. 209 and conducted a search to that warrant pursuant vault, on October 1975. Inside the Officer Peters found six cartons at the observed and in the Cadillac the one with the airport including tear. Based observations of mm. film boxes with covers eight photo which were in in vault No. warrant search plain sight supplemental No. 11991 was submitted to a issued executed. prepared, magistrate, Rectum,” to that warrant Pursuant John Holmes copies “Raped “Big Scouts,” II,” and the Girl others, and “Erotic Hands—Parts I and among were seized. Based on his Officer Peters testified training expertise, that in his the nature of the business at 942-946 Seward was the opinion commercial distribution of mm. films on a wholesale pornographic eight level.
Discussion The Use of Binoculars. States, relies on Katz v. United majority opinion primarily supra,
As in neither Katz nor White us previously my opinion requires to reverse and Kim is factually distinguishable.3 3 In Kim FBI used an 800 millimeter agents with a 60 millimeter to telescope opening
observe activities in suspected defendant Kim’s and on gambling his apartment balcony from a aof mile The quarter use enabled the away. to see other telescope agents in defendants calls and a apartment making telephone From a reading sports journal. different vantage feet from the a different of FBI point approximately building group
The case is in no tailored to meet the situation White way “virtually in the from a here involved” as stated White stemmed majority opinion. suit chief of to against city’s seeking enjoin taxpayer’s police of in funds connection with certain alleged illegal expenditure public covert The Court activities. reversed trial court’s intelligence Supreme order a demurrer without leave to amend and entered sustaining general for defendant. The Court held that covert judgment Supreme police students, in and classes sessions operations posing enrolling recording of in classes and and university public private meetings university- facie violates freedom of freedom sponsored organizations prima speech, Const., and the state constitutional art. (Cal. assembly right privacy 1). § I,
The White case is so that it does not warrant clearly inapplicable further discussion to out that in the instant case Officer except point Johnson was not in students surveilling professors engaged legitimate educational at educational cloaked state-financed institutions pursuits with In official freedoms and academic his assembly pursuit. speech, he was defendants capacity surveilling specific reasonably suspected business of distribution of scale explicit conducting large illegal sexually Moreover, I, Code 311.2. article violation of Penal section pornography section 1 of our state Constitution was amendment), (1972 primarily to be directed “Government seem agencies [and businesses] [who] to the most extensive sets of dossiers of American competing compile The citizens.” court said: of records makes “Computerization possible create ... It American. ‘cradle-to-grave’ prevents profiles every and business interests government collecting stockpiling information about us and from information misusing gath- unnecessary ered for one or order serve other to embarrass us.” purpose purposes Davis, 13 Cal.3d 774.) (White supra, Obviously, purpose I, article not did section was intended to nor it restrict in any way individuals reason- conduct while reasonable surveilling specific 35) (7 used a of binoculars to view the terrace. The information agents pair acquired the surveillance was used to cause during establish probable court-approved wiretap and to demonstrate since the surveillance and other wiretap necessary could evidence to convict investigative procedures produce enough suspected gamblers. evidence derived from Kim Court defendant’s motion to granted suppress surveillance of Kim’s since the use of apartment building telescope telescopic activities within the was an intrusion of which constituted observe apartment privacy needed and if the FBI had cause to criminal “search" agents probable suspect activity surveillance have for a search warrant. should *15 telescopic applied
521 criminal nor did it under activity ably suspected on-going circumstances instant case intend to clothe defendants herein with as from a “reasonable” distinguished “privileged” expectation privacy.
In
view the factual circumstances in the case of Commonwealth v.
my
177,
are
instant
Hernley, supra,
Pa.Super.
closely analogous
rationale and
are
I further note that in
case and its
reasoning
persuasive.
Hernley
Court (401
certiorari was denied
the United States Supreme
by
813,
U.S. 914
L.Ed.2d
In an FBI defendant Hernley agent suspected Hernley printing football forms in his noticed that the gambling print shop. agent inside the in the hours being evening presses print shop operated but he was unable to see what was from off the his being printed position due to the location and size of the windows. In order to premises remedy this mounted a which he four foot ladder on problem agent placed the railroad tracks defendant’s and from distance of abutting property 30 to 35 feet observed the side window with the aid of binoculars through some “Las football run off the sheets Vegas” parlay being press.
The trial court
all
under a
evidence obtained
search
suppressed
warrant on the basis that the search was
v.
unreasonable based
Katz
States,
United
“Whether
actions of
this
agent
all the
search can
be decided
surround
unreasonable
examining
only
by
Amendment
circumstances in
of the Fourth
requirements
ing
light
California,
23,
v.
374 U.S.
the relevant case law. See Ker
interpreted by
1623,
to a
(1963).
This examination amounts
83 S.Ct.
10 L.Ed.2d
of interests between the
order
security
public
balancing
crimes, and a
solution
person’s immunity
prevention
Hicks,
1,
v.
Commonwealth
interference into his
Pa.Super.
privacy.’
5,
873,
determination,
is essential
223 A2d
In
this
(1966). making
in mind the
of the Fourth Amendment
basic
protect
purpose
keep
v.
intrusion
individual’s
arbitrary
police. Boyd
privacy against
States,
616,
524,
United
116 U.S.
6 S.Ct.
“Viewing
agree
line of federal court decisions
window
have
observations
long
involving
held
to be
such
in violation of the Fourth Amendment where the officers
made their surveillance while on the defendant’s
See Brock v.
property.
States, 223
681
United
F.2d
Cir.
(5th
1955);
of State of Cal. v.
People
Hurst,
760,
“The
whether the
then is
Katz
a different
decision
question
requires
result. There the court
that the
held
attachment of an electronic listening
booth,
device
to
outside of a
were able
telephone
whereby
record
defendant’s conversation while
within
using
telephone
booth,
was
seizure
an unreasonable search and
because it violated the
which defendant
relied while
upon
privacy
justifiably
using
telephone
booth. Previous
cases
electronic surveillance was not
holding
unreasonable where no
was involved were held to be no
trespass
longer
controlling.
idea,
4In a
at this
court
from the
footnote
states:
these
point
“Apart
trespass
rely
view’ doctrine.
basis of
this
‘plain
recently
Harris v.
theory
expressed
States,
992, 993,
(1968),
United
U.S.
S.Ct.
“We find that Katz does not different result for two require second, . . . The more reasons. but reason is significant, although Katz does eliminate the intrusion in electronic physical requirement situations, it the also need for a eavesdropping emphasizes justifiable the of the that he is his expectation part suspect conducting activity outside the intrusion. Justice Harlan’s sphere possible governmental to a two-fold That the (a) concurring opinion points requirement: suspect has ‘exhibited an actual (b) (subjective) expectation privacy,’ can view this as a reasonable one. 389 at U.S. society expectation Katz, booth, S.Ct. at 516. In the entered a closed the door suspect phone toll, the to exclude the ear. paid thereby seeking effectively listening held The Court that his in this was Our expectation regard justifiable. in which it the case situation was incumbent on presents suspect his from visual observation.!5! To do that the preserve privacy appellees had to curtain windows. Absent such obvious action we cannot only find that their or reasonable. The was expectation privacy justifiable law will not shield criminal from visual observation when the activity actor shows such little for his regard privacy.”
In as in the at aided view case bench officer’s was Hernley optically into an in a enclosure commercial structure used for business purposes (unlike Kim where the enclosure was Kim’s home is man’s apartment [a his used in and the case were castle]). both instant optics Hernley binoculars close while in Kim a employed relatively range was used from a distance of a of a mile. Officer Johnson telescope quarter unaided binoculars could see individuals Arno and (defendants in suite 804 around in front of window who had Sinopoli) moving color of same on as did the individuals who had left the Selma clothing location unlike where view Kim of Kim’s was impossi- “plain apartment ble; Kim, an aided view could States v. (United only penetrate.” supra, Officer Johnson 1256.) The other activities specific F.Supp. within the view while observed and were made clear reported merely in Arno and who were that was fact defendants Sinopoli verifying Moreover, 804. of Officer Johnson’s conduct suite reasonableness the FBI than that in In instant case is Hernley agent stronger Hernley. a line of vision into had to obtain a ladder and climb it in order to obtain Here, Officer Johnson’s surveillance aided binoculars. print shop “The court that the 5 "’Ina footnote this court states: below noted point Supreme in the fact that the was visible Court in Katz found no for the government suspect support however, here booth. That is not glass-constructed finding, applicable through in Katz it was the ‘uninvited ear’ which was rather than the because excluded sought ” ‘intruding eye.’ a natural hill mass to and level with conducted from about adjacent suite 804 Building. Playboy
I conclude that the of circumstances described above totality amply the trial court’s denial of defendants’ motion supports suppress that, inas it was incumbent on them to their Hernley, preserve privacy from visual observation Absent such an by merely drawing drapes. *18 obvious action I cannot find their simple expectation privacy either or reasonable. The law should not shield their criminal justifiable from visual observation when have shown such activity they flippant for their own while their disregard privacy knowingly conducting criminal activity. do I
Nor that in the defendants instant case perceive possessed any under the here than circumstances greater expectation privacy present did defendant Stroud in v. Court 37 (Stroud) (1974) Superior People 836 denied 764], Cal.App.3d Cal.Rptr. petition hearing May [112 1974. In Stroud the held court that a view from a reviewing circling police at an altitude of about 500 feet with the “naked helicopter eye a did binoculars” into 20-power through gyrostabilized private yard constitute conduct. impermissible police I
Nor do functional difference between the use of perceive any to aid the binoculars naked under the circumstances ordinary eye present here the a than use of a beamed inside lit flashlight dimly apartment a door v. 2 (1969) Boone through voluntarily opened (People Cal.App.3d 66 or in beamed the cracks wall to 398]) Cal.Rptr. through garage [82 from ascertain if had defendant stolen his adjoining garage goods v. Lees (1967) or 888]) garage (People Cal.App.2d Cal.Rptr. [64 beamed inside a vehicle from outside vehicle v. (1966) (People McVey all of which has been 269]), held not to Cal.App.2d [52 constitute an search. illegal
Moreover, use of constitut- binoculars assuming, arguendo, ed invasion of defendants’ “reasonable impermissible police expectation I conclude that if the obtained information so was excised privacy,” affidavit warrant to search suite 804 the support was still cause affidavit sufficient to establish to authorize probable issuance the warrant. further that defendant Arno was the (1) Noting defendant in suite 804 convicted defendant (not convicted present only Johnson Steer) when Officer used the binoculars his improve ability he had seen in detail with his naked see more what some clearly already of the seized (2) none evidence from suite 804 to the eye; pursuant 11869) search warrant was the (No. basis of the counts which convicted; and that the defendants’ other of error as assignments merit, I hereinafter discussed lack further conclude that even if to the binocular-aided view was admit- testimony pertaining erroneously ted into evidence at time of trial the error was harmless beyond reasonable doubt 386 U.S. L.Ed.2d (Chapman California 705, 87 S.Ct. 24 A.L.R.3d 1065]), woven such prosecution having web of absent such strong guilt testimony. The Other Issues.
The does not address other issues raised majority opinion defendants on appeal. opinion appellate department *19 court states were considered and found superior to be simply without they merit. I also have considered them and conclude all lack merit and themof as follows: briefly dispose
I obtained information from the Pacific police Telephone Company that the subscriber of the unlisted (659-6257) number seen in telephone view on the six cartons films at the United Airlines plain pornographic 14, 1975, air terminal on October was defendant Arno at 1131Alta freight Road, Loma 217. The of the information apartment acquisition from the which was telephone company solely for identification did not constitute (see conduct v. purposes impermissible police People 731, Elder (1976) 63 737-738 212]) Cal.App.3d Cal.Rptr. contraiy [134 defendants’ contention.
II Defendants’ contention that search warrant No. 11869 was invalid because service not was nighttime a authority supported by showing cause is not the record. good supported by Penal Code section 1533 that a provides pertinent part magistrate cause, discretion, . . . in his showing insert a “upon good may, in a direction search warrant that it be served at time of the may any day or . . . .” To establish cause must be night good magistrate “[t]he informed of facts from which it be concluded reasonably may contraband to be seized will not in the be to be searched place during
526 592, 7 a.m. to 10 v. 75 hours of Watson (People Cal.App.3d p.m.” 1533 598 does 245].) Cal.Rptr. require separate [142 “[SJection statement as to cause for the of warrant in good serving nighttime Walker, 214, v. if the 495]): (People Cal.App.2d Cal.Rptr. [58 affidavit, read in a common sense manner and as a whole reasonably the inference that the interests of are best served justice supports service, authorization of in the such service nighttime provision Scoma, 332, warrant is v. (Cf. Cal.2d proper. People supra, [78 491, discretion, 455 P.2d Absent an abuse of 419].) Cal.Rptr. aof reasonable service will not magistrate’s finding nighttime necessity Court, be disturbed on v. 63 Cal.2d 776-777 (Solis appeal. Superior Walker, 408 P.2d 945]; Cal.Rptr. People supra, Cal.App.2d [48 214, 219-220 495].)” v. Mardian Cal.Rptr. (People [58 16, 35 269].) Cal.App.3d
Here, a warrant, common sense of the entire with the reading together therefrom, reasonable inferences to drawn leads me to conclude that cause was Judge Younger justified finding good present authorize service and there nowas abuse of discretion. nighttime 5, 1975, defendants Arno and hours
During daylight September In activities a movement of began indicating inventory. light Sinopoli *20 and the Officer of the field of Weller’s knowledge obscenity general surveillance, made 10 he observations during previous days specific concealment, removal of that there be destruction or concluded might and evidence before a search warrant could be drafted immediately that from He made a statement undertook prevent occurring. separate with the of facts service which along regarding necessity nighttime warrant were written and on the same 11869) search (No. evening typed of 4 and 12 It could 1975) between hours midnight. (Sept. p.m. concluded the entire warrant reasonably including separate affidavit service that made requesting nighttime Judge Younger determination that: the films were still on the (1) and/or premises searched; vehicles to be and the films and other evidence have may concealed, been in the removed or for removal process being prepared or concealment or to be to the seize likely destroyed prior opportunity them to a warrant on the pursuant operable only following day.
Ill which Defendants also contend that the of film boxes have opening of oral covers in acts and copulation plain sight depicting photograph
527 for the the film in order to sodomy screening purpose provide of its contents to a description reviewing magistrate support of a warrant issuance constitutes an search. Their supplementary illegal on reliance Fixler v. Court Superior Cal.App.3d is 285], misplaced. Here, warrant seizure of search No. authorized the copies film from vault No. at 942-946 North Seward Avenue. When Officer warrant, Peters entered vault No. to the search he saw the pursuant six cartons first seen at the United air Airlines terminal large freight were which unloaded from the trunk of defendant Arno’s Cadillac by codefendant Steer and taken into vault No. 209. As Officer Peters walked toward the six he cartons observed numbers boxes of mm. large eight film and a shelves table on the wall sitting south plain sight vault. The covers of of the boxes visible to him were many clearly acts of oral and From his photographs depicting copulation sodomy. and Officer Peters knew that training experience sexually explicit eight millimeter film is in boxes on the cover packaged utilizing photograph aof or scene taken from the movie within box. the 47 excerpt Among boxes of mm. film with covers in eight plain sight “Playmate I,” Scouts,” Hands, John Holmes Girl “Erotic #17—Big Hands, IV, VII, “Erotic II” which were the basis counts VI and These three films and thirteen had others been respectively. previously viewed in their Officer Peters who recalled that contained entirety they acts of oral masturbation and sexual intercourse. copulation, During those Officer Peters recalled boxes used to hold previous viewings the films bore the same and titles did the he boxes saw photographs vault No. 209. Officer Peters fellow viewed the films investigators location and wrote the themof which included in descriptions their affidavit for search warrant 11991. No. supplemental
In the Fixler were a officers warrant the seizure executing authorizing warehouse, found, of two At sex the in addition specific magazines. they 2 to the named 171 other which seized magazines, magazines they without a warrant. The 171 unnamed because magazines suppressed lack of a valid warrant.
Here, hand, on the other Officer Peters and his fellow investigators acted to avoid Fixler error. commendably entirely properly any They films, did not seize other viewed them and then they merely applied for warrant to seize films. The fact that the officers could seize the films without a warrant does not mean that could not relate their they
528 fact, observations as the basis warrant No. 11991. In if the securing officers had the films in in vault No. 209 which were ignored plain sight not covered warrant No. 11990 and had not did as proceeded they would have dereliction of their been duties as guilty gross officers.
IV
who were
that individuals
herein
assert
Defendants
totally
additionally
excluded
wheelchairs were
and confined to
systematically
nonambulatory
due
which violated their (defendants’)
rights
process
jury duty
did not
a cross
under the Sixth Amendment since
represent
jury panel
that such
(defendants)
section of the
persons
argue
community. They
confined to wheelchairs constitute a cognizable group
attempted
faced
that such nonambulatory persons
unique
prove by expert testimony
attitudes and
attitude and architecture barriers and
unique
possessed
sexual conduct and
films.
viewpoints concerning
sexually graphic
of the existence of a
is a
of fact
question
cognizable group
question
and automatic
of an
in and
exclusion
“identifiable
does not
group”
itself establish those
v.
Texas
(Hernandez
persons
cognizable group.
475,
866, 870,
L.Ed.
U.S.
S.Ct.
In United
667].)
[98
v.
States
Guzman
court defined
(S.D.N.Y. 1972)
F.Supp.
143-144
“A
as follows:
to be
cognizable
‘cogniza
groups
pages
group
is, there
have a definite
That
must
ble’ for
composition.
purposes
present
A
factor which defines and limits the
must be some
cognizable
group.
or whose
is not one whose
shifts from
day
day
group
membership
have
must
members can be
selected.
arbitrarily
Secondly,
group
which
cohesion. There must be a common thread
runs through
group,
which is
in attitudes or ideas or
a basic
present
similarity
experience
if the
of the
and which cannot
members
adequately represented
group
there must be a
is excluded from
selection process. Finally,
group
jury
will
or bias
that exclusion of the
result
group
partiality
possibility
are involved.
cases in which
members
of juries hearing
group
part
is,
which cannot be
of interest
That
must have
community
group
States v.
See United
rest
populace.
adequately protected
Greenberg
[(S.D.N.Y. 1961)]
F.Supp.
[382]
at 391.” (Italics
added;
Court
12 Cal.3d
see also Adams
Superior
*22
I conclude case amply supports a below Vaino (Hon. court’s following findings Spencer presiding), the that motion to on defendants’ panel, quash jury hearing two-day the without from wheelchairs extricate themselves unable to persons within are not a another of cognizable group assistance person 140, and the Guzman, United States definition of F.Supp. supra, in fact such individuals were views held unique by unique purported of the a to but in them alone larger population. percentage present testified that Holtzendorff- Commissioner case In instant Jury were not called for wheelchairs all times to jury duty confined persons of exclusion not. The to serve or whether wished of policy regardless inor addition used wheelchairs to who not extend part-time did persons that canes, It not the devices. was other similar to policy braces intelli devoid of or confined ordinary wheelchair decrepit persons of the (2), section subdivision was based The upon policy gence. of be in which that of Civil Procedure Code juror possession requires included: (1) for the exclusion natural faculties. his justification mass all individuals in a hazard to building during multistory physical stairs; lack, in trial court of some (2) evacuation use requiring facilities; the lack in some of restroom buildings, ramps special for of persons; buildings parking spaces assigned handicapped to wheelchair confined vehicles lack transport specially equipped service; to which all locations during jurors might required jury individual (5) the to the wheelchair confined hazard during physical mass evacuation.6 building multistory on defendants’ motion evidence adduced at the
There was hearing confined to wheelchairs to show that persons quash jury panel and frustration reason suffer more generally anxiety, depression attitudinal, (which sexual barriers some cases architectural and sensation results sexual and loss of reason genital impotency literature more fantasies and erotic being acceptable) enjoyment However, there also taken as a whole. than general population 20, 1978, 6 The record on a letter dated March appeal contains Commissioner Jury Goodwin, Cole, William A. addressed to John L. Judge presiding judge appellate 1, 1977, which states in substance that while department, prior January policy wheelchair-bound citizens from service did for reasons testified excluding exist jury (lack facilities and their Commissioner Holtzendorff by Jury appropriate physical (Jan. 1977) that wheelchair-bound citizen has been since date “no safety) physical it, he or for the reason requested being excluded from service unless she jury solely in his out that there has to a wheelchair.” Commissioner Goodwin letter pointed confined an of facilities “upgrading been an “extensive of all Court facilities” and on-going survey needed to ensure that wheelchair-bound citizens” can service. safely provide jury where 1, 1977, citizens have three wheelchair-bound [only] He out “Since pointed January service.” provided jury *23 (1) evidence that when wheelchair became persons ambulatory they retained and of the barriers good comprehension as understanding those so confined for life as do the experienced by friends and spouses, of such in parents could become persons; anyone society wheelchair confined or life at time and thus the year any of the shifts from to and its members are membership group day day wealth, selected race, without to arbitrarily regard intelligence, age, religion background.
Thus, the evidence shows that the ain membership group totally confined to wheelchairs from to shifts nonambulatory persons day day Moreover, and is selected. it shows that the so-called “common arbitrarily thread” in to the of erotic literature such respect alleged acceptability is also those former who persons represented by nonambulatory persons became and the friends and ambulatory spouses, parents perma- wheelchair-confined it is obvious that the so-called nently persons. Finally, confined “uniqueness” purported propensity persons perma- to wheelchairs to find erotic materials is not nently acceptable “unique” all or theaters such films would not have filled their showing establishments with row on row of fixed seats. It is also obvious materials would not able be to in purveyors sexually explicit stay if business had to on those unfortunates bound to rely solely wheelchairs as customers. their I defendants’ assertion that the
Finally, summarily reject systematic exclusion wheelchair-confined ais denial of persons jury duty law. The defendants do themselves not fall within equal protection to confined wheelchairs and do not have the to raise group standing this issue as to relates their to a cross-section except right jury hereinbefore discussed7 event see (but Adams Court any Superior 6, ante, 12 Cal.3d 524 P.2d fn. 375]; 529). p.
V Defendant Arno’s contention that his convictions should be reversed because he was denied his constitutional right personally present the course of his trial is not during record. supported by 7One would have to be unobservant insensitive not to be highly extremely at defendants who indignant are scale engaged hardcore film large pornographic distribution business and who themselves are not wheelchair-confined to use attempt are those who so restricted as in a far-fetched unfortunately scapegoats legalistic ploy their own criminal escape liability. *24 trial clear that the to be It is during may right personally present 977, after a (a), section subdivision to Penal Code waived pursuant which Code section 1043 absence to Penal pursuant finding voluntary a defendant to frustrating was intentionally prevent designed (See himself. trial his People absenting by voluntarily orderly process 379, 409].) 384-385 v. Connolly Cal.App.3d Here, abuse its discretion the record that the trial court did not shows that defendant Arno had when it the determination made voluntarily Penal with trial as himself and provided absented proceeded Arno con- defendant record reflects that 1043. The Code section court, in his absence. The motions to the sented hearing pretrial (Keith which outlined Arno’s a letter from his doctor on based Agre) over that his condition would medical improve problems stating months, the case for to three continued the next two approx- Arno with his after to consult two months admonishing mately in the event he should choose for trial to.remain attorney preparation to trial the case came on the date trial. When home to subsequent 7, 1976, counsel without informed December court was proof through was for tests but that defendant Arno to be or documentation hospitalized was made nor was an no for another continuance express request with Arno’s absence. forward trial in defendant to lodged going objection facts its own The above observations trial court based Arno that defendant had Arno in found defendant September voluntarily Moreover, Arno in court himself from trial. defendant absented appeared 1976, out of of the on December to during testify presence jury that he had been released from the which he mentioned testimony had December 1976. returned home Saturday, Following hospital he after introduced to the conclusion of his was excused testimony, being the jury. total Arno’s absence indicate that he circumstances surrounding it at his convenience or when suited his attendance capable Furthermore, record, from the his doctor’s it is clear including
purposes. letters, was neither nor that defendant Arno’s condition going improve it have in the future would been and that at no time worsen necessarily have allow defendant To more convenient to indefinitely put proceed. would have frustrated the lawful under those circumstances off his trial 1043 and would have of Penal Code section effectively impeded purpose system. orderly judicial processes addition, In that the failure Arno’s counsel to appears pursue relief of a for a writ of after way petition pretrial mandate/prohibition the court’s trial decision with have constituted an proceed may implied *25 waiver of his client’s to be v. 60 Wilson (See (1963) right present. People 139, 44, Cal.2d 149 383 P.2d waived Cal.Rptr. [objection by [32 452] failure to seek writ].) extraordinary
VI error, The trial court did not commit claimed as prejudicial defendants, to strike the of Officer Weller by refusing expert testimony which was based on documents. partially hearsay
It is well established that officers have been as recognized expert in a witnesses of with fields law enforcement. multiplicity dealing (People v. 271 (1969) 322 v. 557]; Parks Hardy Cal.App.2d Cal.Rptr. People [76 263 (1968) 490 368]; v. Cruz Cal.App.2d Cal.Rptr. [69 People 55, 59 772]; Hart Wielt (1970) Cal.App.2d Cal.Rptr. [66 Cal.App.3d The 220].) that Officer Weller was a Cal.Rptr. parties stipulated [84 trained, in the area of duly qualified experienced investigator that he an sale, was in the distribution and at all pornography; expert levels, matter; of and that he had pornographic knowledge expertise and the nature of its commer concerning availability pornography cial distribution.
Here, Officer Weller testified as an witness that was his expert that the 6760 Selma and 8560 Sunset Boulevard locations utilized opinion defendants sites wholesale distribution sexually explicit retailers, films to wholesalers and mail order His establishments. opinion based certain documents which were seized at the two partially upon locations sheets of film order transactions and consisting accounting forms for film. The court later refused admission of which documents formed a basis his for into evidence on the partial opinion ground constituted and a foundation for business record hearsay could not be laid. However, the court denied defendants’ exception motion to strike all the documents testimony concerning supporting Officer Weller’s with to commercial distribution. opinion respect
An state the reasons his and the matter expert may opinion upon Code, which it is (Evid. based. 802.) § fact that the documents in the involved instant case were later declared to be inadmissible hearsay does not affect the of reference in the to and utilization them propriety formation of Evidence Code section subdivision (b), expert opinion. authorizes the use of or other matter as a inadmissible basis for hearsay an v. Beach (see expert’s opinion People Cal.App.2d it satisfies the condition of 394]) provided being type matter which an his upon expert may reasonably rely forming opinion some indicia of trustworthiness and in order to serve by having reliability Jefferson, basis for the Cal. Evidence (See expert opinion. Benchbook, 29.4, Here, issue, 507-508.) records § pp. type invoices, sheets, orders are in nature and accounting documentary clear indicia of in terms of of data possess reliability being type upon which Officer Weller could his reasonably rely reaching opinion. *26 that Officer Weller’s was
Assuming, arguendo, opinion inappropriately based in on inadmissible observations any part hearsay, remaining admissible, alone, and documents declared would have served to standing his conclusion. There was corroborated evi- support ample competent dence before the from which could draw the same conclusion jury that Officer Weller drew absent of the documents in any knowledge Moreover, defendants can show no as a result of the question. prejudice admission of Officer Weller’s in that the documents expert testimony referred to and related defendants to a film which complained served as the basis a count which was dismissed. (Cal. ultimately Const., VI, art. 13.) §
VII Defendants’ contention that the evidence was insufficient to support as to the deviant of “Erotic I and II” Hands—Parts and as finding appeal that to defendants the films seized in vault No. 209 finding possessed with the them intent distribute is not the record. supported by
When faced with a contention of of evidence insufficiency following conviction, limited court’s is to a reviewing power appeal evidence, indirect, determination of whether direct or substantial sup whether evidence ports judgment guilt proves beyond reasonable doubt v. 38 Anderson 952 (1974) (People Cal.App.3d [113 v. 733 729]; (1974) Cal.Rptr. People Cal.App.3d [113 Standifer and a verdict will not be set aside for 653]), Cal.Rptr. insufficiency evidence unless it that no whatever is there appears upon hypothesis substantial evidence to it v. Collins support (People Cal.App.3d 864]; Whittaker Cal.Rptr. People [118 Cal.App.3d 845]).
Penal Code section subdivision that (a) (1), provides predominant interest is with reference to adults appeal prurient judged average unless, distribution, film nature of the and circumstances of its that it for a defined deviant appears designed group.8 clearly The films “Erotic I IP’ Hands—Parts VI and contain (counts VII) insertion,” hand, the act “fist the insertion wrist and/or fingers, forearm one individual into the anus of another Defendants person. the films to a deviant rather than to argue appealed solely group average persons.
I conclude that the Weller,9 Officer witnesses testimony prosecution Dr. B. Victor Cline10 and Dr. Thomas Von Dedenroth11 constitutes substantial evidence to on the films “Erotic support finding jury’s I II” Hands—Parts as to the deviant the film and requisite appeal evidence both direct and indirect to the entire course pertaining of conduct of defendants relative films as heretofore discussed *27 constitutes substantial evidence to the of intent to finding support distribute them. 8The court the trial instructed in this properly follows: jury respect been “There has some evidence in this case to show that the intended attempting Hands, Hands, II,’ . . P of . ‘Erotic Part and ‘Erotic recipients Part were
probable If members of a deviant sexual case, find from all the evidence that this the group. you are then to determine whether the material in or all of the aforementioned you any interest, to the in of the films terms member of the deviant appeals prurient average the in and not adult the average group person community.” “If that are directed find certain films deviant and if find that you clearly groups you is inadequate to whether materials to the your experience judge appeal prurient interest of the member of such as was average intended then recipient group, rely you may upon such as to what to the of the expert testimony presented appeals interest prurient member such average adult group. either, “If determine that film in you did not question to the interest appeal prurient adult of insufficient member of such average intended or that the recipient group, evidence was other, enable to to make a determination one or the you then way must you 6,5, find defendants not as to those films in counts and 7 VI guilty [V, and VII].’’ homosexuals, 9“OfficerWeller testified about a group as “Fist Fuckers of self-styled America,” California, in Southern present which a bizarre than rather a deviant insertion, and in addition fist their to sexual group pain conduct included infliction of or injury as well as urination and defecation each other. Cline, 10Dr. a clinical that testified to the psychologist, adult in average person California, standards, applying contemporary predominate in appeal depictions these was to films interest and in essence prurient an interest in appealed sadomasochism. Dedenroth, 11 Dr.Von testified that psychiatrist, these appeal predominates films to the would be adult’s average prurient interest in that it concept conveys sex should be associated with violence order enjoyable. VIII a review of the record discloses that the made a officers Finally, faith and conscientious effort to with law while good comply conducting their intensive as evidenced their 10-day investigation obtaining search warrants affidavits. After careful separate supported by lengthy affidavits, found that consideration Judge Younger properly cause existed for the warrants and the warrants withstood probable defendants’ motion to certain evidence before pretrial Judge suppress Tevrizian. or technical stone unturned. first
Defense counsel left no legal They who after a moved to before Judge 2-day quash jury panel Spencer denied the motion. and over 450 hearing pages reporter’s transcript discussion, then over a before ante.) Defendants (See 5-day Judge period Tevrizian made series of motions covering pages pretrial reporter’s transcript. trial Tevrizian’s court itself lasted jury days Judge covering 1,200 matter, At
over the conclusion of the pages testimony. contains between court and transcript following reporter’s colloquy counsel: All I am with the defense on this. I right. going agree
“The Court: *28 think it would don’t serve the interest of to further justice really prosecute II, III, Counts and V. This was a trial. I think both very long, protracted sides had their best shots. Robinson,
“Mr. I think did a as a in this case. good you job prosecutor Defense, also, You were likewise did a I was prepared. good job. very with the whole trial. The an We had impressed jury intelligent jury. three, believe, educators, I one Ph.D. on the from all walks jury, people life, levels, various economic educational levels. Court, motion, II,
“All The on its own will then dismiss Counts right. III, Vand to Penal Code section 1385. pursuant
“Mr. Abelson counsel defendants Arno and I [defense Sinopoli]: ends, this as record which I am might say, sure will lengthy eventually court, read some counsel in this case appellate could not unanimously have found a better of, kind of a case in front judge try any judge who was as fair to the defendants and the defendants the gave impression fairness, and counsel and the which is the crux of our jury system. much, I that comment Mr. Abelson. appreciate very ’’The Court: Sinopoli: Honor, I’d like to thank too. you, your “Defendant Steer: Thank Honor. you, your “Defendant I would concur with that on [deputy city attorney]: “Mr. Robinson . . . .” behalf of People
I conclude that the officers did not conduct themselves unrea- of their nor did violate phase defendant sonably any investigation Arno’s “reasonable The and each of defendants expectation privacy.” them were tried convicted. fairly justly
I have heretofore addressed in some detail issue specific upon which the based its reversal and treated more majority opinion briefly other issues raised on set I now forth additional appeal. points with the which are of a disagreement majority opinion generally policy nature. to me to be somewhat unclear and majority opinion appears some However,
contains it, I statements. read it has contradictory either the irrational rule (see dis. misapplied exclusionary my opn. 570, 578-582, People fns. Swearingen Cal.App.3d *29 755]) as hereinbefore or discussed has ignored judicial prece- dent which holds that there is no set formula for determining “reasonableness” and it be decided on the and facts requires Berutko, of circumstances each case v. 84) Cal.2d and (People supra, it (2) that is our on to a trial court’s a duty appeal uphold ruling motion to evidence, evidence if it is substantial suppress supported or Court 13 Cal.3d express (People implied Superior (Keithley), supra, 406). or
However, has legal precedent whether departed majority in new formula to a not, been made fashion an has obviously attempt In officers. law enforcement my of binoculars use respect interest and not in the best advanced is unwise the new formula opinion officers’ law enforcement that it restricts in of sound unduly public policy their war tool in (binoculars) of a vital expanding use against vice crime and problem. organized
The new formula draws a distinction between majority opinion’s life, a or crimes “substantial risk to those involving person property” which not indicates crimes do involve such characteristics. opinion officers to use binoculars aid that would be impermissible police their while individuals of vision surveilling reasonably suspected engag- latter of a (i.e., crimes those “substantial ing involving group life, if of their view is outside the risk or person property”) object “the of of the unaided or unless range eye optically apparently purpose aided view is to clandestine surveillance optically permit without the that which could be from a more obvious seen vantage point aid.” optical had Officer Johnson in the case at bench if
Accordingly, hypothetically a the binoculars from his with the aid of rape observed vantage point or work in suite dismembered an arsonist or body being progress However, been admissible. aided observations have his may optically in the crime distributing the defendants since only engaging constituted his aided observations hard-core optically pornography constitutional violation of defendants’ right privacy “quintessential”12 Thus, I it has the as construe are inadmissible. majority opinion officers’ law enforcement net result of unduly restricting practical in their official duties utilization of binoculars while detecting engaged wide criminal activities evidence of a involving range acquiring like, narcotics, and the bookmaking prostitution, pimping, pornography, latter This group magnitude irrespective operations. crimes” which is has referred to as “victim-less crimes been loosely is the victim. are no victim-less crimes. misnomer. There Society gross the fifth and essence in ancient and medieval highest 12'"‘Quintessence [noun]—1: bodies; all nature and the substance the heavenly is permeates composing philosophy form; of a in its and most concentrated 3: the most thing purest typical 2: essence (Webster's New Dict. [adjective].” Collegiate or example representative—quintessential 1972) 702.) (7th ed. p. *30 538 in view restricts law majority opinion enforcement my unduly
officers from interest in to the protecting commission of society’s respect of crimes mentioned above.13 types
I would affirm the of conviction.14 judgments A for a 3, 1979, was denied and petition rehearing April respondent’s for a Court was petition hearing denied 1979. Supreme May 13 Herein we once opinion continue to my again march degrees in lockstep direction. wrong reversal Once after again of effort and great expenditure funds another public in the “giant joins wreckage reason of junkyard” judicial landscape by an upside-down of criminal which system diverts the focus of criminal justice prosecution from the or innocence of the guilt defendants to trial of the police. 14 Ihave heretofore eschewed to footnote of the responding in kind majority opinion since it would be beneath the of this office. I still dignity Although will not in respond kind, 20, 1979, with the aof modification to filing footnote on March some comment is compelled. I the lack decry propriety, collegiality judicial temperament, displayed footnote 2. I abhor the loss of for the public legal and the respect profession judiciary footnote has engendered reason of the in the report Los Times on March Angeles (circulation 1,034,329). One cannot fault the certainly Los Times Angeles for using (Webster’s) an English since California dictionary over published opinions years have been written in English our does not jurisdiction extend seven obviously thousand miles to the Rhine in Germany. I construe the reference in footnote 2 Ginsberg within the context of the case at bench as a the California State affront to personal California citizen their every elected duly representatives who have Legislature deemed wise enact our public policy criminal laws and to obscenity all public servants with the charged responsibility It enforcing those laws. is no wonder that California has the odious distinction of being of the world. porno capital