THE PEOPLE, Plaintiff and Respondent, v. MAX MORTON GOLDEN, Defendant and Appellant.
Crim. No. 17581
Second Dist., Div. Five.
Sept. 22, 1971.
20 Cal. App. 3d 211
Harrison W. Hertzberg and Bennett B. Cohon for Defendant and Appellant.
STEPHENS, J. — By information, defendant was charged with burglary (
On March 13, 1968, а search warrant was issued on the basis of an affidavit by Sergeant Shaidell, a 14-year veteran with the Los Angeles Police Department. Three and one-half of those years were spent in the administrative vice division of the department. In February 1968, Shaidell received information from the Federal Bureau of Investigation that it had been told by a reliable informant that defendant was selling obscene films and possibly “Tijuana Bibles”1 from the back of his car. Officer Shaidell was also informed that these sales were taking place on Main Street, or in the area surrounding Main Street, in downtown Los Angeles and also in various other locations throughout the City of Los Angeles, and that defendant was living at 508 North Orange Drive, Los Angeles. On March 12, 1968, after procuring a photograph of defendant, Shaidell placed the residence at 508 North Orange Drive under surveillance. He saw defendant enter and leave the premises several times. A 1961 Lincoln was parked in the driveway. At 8:45 p.m., defendant came out of the house сarrying a box, which he put in the trunk of the Lincoln. He then drove to a gas station at 8873 Sunset Boulevard and purchased gas from Ray, an attendant. He had a conversation with Ray, after which he moved the car from the gas pump to the entrance to the lubrication rack. Defendant opened the trunk of the Lincoln. Ray reached inside and rummaged through a box in the trunk; he left to wait on customers, and then returned to the Lincoln and removed four reels of eight millimeter film from the trunk. (We now quote verbatim from Sеrgeant Shaidell‘s affidavit): “At this time Officer Monnett stationed himself approximately five feet from the rear of the vehicle and next to a Coke machine, from where he overheard a conversation between Golden and Ray. The conversation was not heard in its entirety; however, the substance of it is as
follows: Golden—‘We‘ll have to jack these guys up to get 20 to 30 different
Based on these facts, Sergeant Shaidell stated in his affidavit for warrant that he had reasonable and probable cause to believe that in defendant‘s automobile and at his home there were “. . . motion picture films depicting acts of sexual intercourse, masturbation, sodomy, beastiality [sic], and oral copulation; booklets, commonly known to your affiant as ‘Tijuana Bibles,’ which depict in writing аnd photograph and drawing acts of sexual intercourse, sodomy, masturbation, beastiality [sic], and oral copulation.” The warrant itself used identical phraseology. It was executed at defendant‘s home the next day.
During the trial, defendant, after having first denied his intent to distribute or sell the films and other items, subsequently recanted his testimony and stated that he did, in fact, intend to sell some of the films.
Defendant makes two contentions on appeal: (1)
Defendant‘s first contention has been answered in United States v. Reidel, 402 U.S. 351 [28 L.Ed.2d 813, 91 S.Ct. 1410] and People v. Luros, 4 Cal.3d 84 [92 Cal.Rptr. 833, 480 P.2d 633]. Reidel, in essence, provides that the constitutional right of a person to possess obscene material in the privacy of his own home does not confer on another a First Amendment right to sell and deliver such material. The states retain broad powers to regulate obscenity. In Luros (at p. 93), which preceded Reidel, our State Supreme Court found that ”Stanley [v. Georgia, 394 U.S. 557 (22 L.Ed.2d 542, 89 S.Ct. 1243)], as the Supreme Court expressly stated, does not impair Roth [v. United States, 354 U.S. 476, 477 (1 L.Ed.2d 1498, 77 S.Ct. 1304)] and the cases following it. States retain broad power to
Defendаnt‘s second contention, which is presented as the more substantial problem before us, attacks the validity of the search warrant. He bases his claim on the lack of prior adversary hearing and upon the legal insufficiency of the affidavit supporting the warrant due to an alleged absence of probable cause. It is true that there was no adversary hearing prior to the issuance of the search warrant. However, we believe that in the instant case no prior adversary hеaring was required. (People v. Luros, supra; Monica Theatre v. Municipal Court, 9 Cal.App.3d 1 [88 Cal.Rptr. 71].) We have no argument with the fact that when the First Amendment is involved, more restrictive rules prevail with respect to a search (see Flack v. Municipal Court, 66 Cal.2d 981, 991 [59 Cal.Rptr. 873, 429 P.2d 192]), “and the ordinary rules of search and seizure are inapplicable.” (Flack, at p. 989.) Defendant relies on Quantity of Books v. Kansas, 378 U.S. 205 [12 L.Ed.2d 809, 84 S.Ct. 1723] and Demich, Inc. v. Ferdon (9th Cir. 1970) 426 F.2d 6433 for the proposition that a prior adversary hearing is an absolute requirement. The argument misses the point, for here the obscenity factor was established by defendant‘s out of court admission. Even a prior adversary hearing before the issuing magistrate does no more thаn establish the factor of probable cause for the warrant. It does not establish the fact of obscenity itself, or there would be no need for the trial. The admission of defendant, in the light of the other known facts, established the necessary element as clearly as would have the adversary hearing. The cases relied upon by defendant are concerned with the means of establishing the factor of obscenity and the identification of the items to be seized. In our understanding (and obviously in the understanding of the officer and the magistrate) of defendant‘s statement, neither factor is left in issue. More to the crux of the problem is the fact that the United States Supreme Court, after Demich, in Reidel, supra, reaffirmed Roth, supra and the fact that obscenity is not within the area of constitutionally protected speech or press. Reidel (402 U.S. 351, 356 [28 L.Ed.2d 813, 817]) went on to say: “It [Stanley v. Georgia, supra] does not require that we fashion or recognize a constitutional right in people like Reidel to distribute or sell obscene materials.” At 402 U.S. 351, 356 [28 L.Ed.2d 813, 818], the court reiterated: ”Roth has squarely placed obscenity and its distribution outside the reach of the First Amendment and they remain there today.” We therefore conclude that in the instant
But this does not mean that a search warrant will only issue when there has been a prior adversary hearing. We believe that what is required is merely a stronger showing of probable cause before a magistrate may issue the search warrant. One method for establishing probable cause is obviously by way of a prior adversary hearing, but this need not be the only method. In the recent case of People v. Luros, supra, 4 Cal.3d 84, 88, our Supreme Court reiterated: ” ‘Where, as here, the seizure occurs under a warrant, an ex parte determination of the issue of obscenity, so far as probable cause is concerned, has taken place before issuance of the warrant, and immediately after the seizure a determination of the issue to that extent can be obtained in adversary proceedings by controverting the warrant under
We therefore are directly confronted with the question of the establishment of probable cause for issuance of the warrant. The warrant issued upon statements that: (1) the FBI informed Sergeant Shaidell that a reliable informant had informed them that defendant was selling obscene films and possibly Tijuana Bibles from his car and that the sales were taking place in various locations throughout the city; (2) Shaidell placed defendant‘s residence under surveillance and Shaidell observed defendant bring material (which was soon found to be films) from his house and place it in his Lincoln autоmobile; (3) defendant was followed to a service station, where a clandestine transaction involving four reels of film took place; (4) the purchaser of the films then attempted to hide them; (5) during the course of the transaction, defendant was overheard by
The information supplied by the FBI cannot, obviously be considered as reliable since the “reliable” informant was not named, nor were the circumstances enumerated upon which his information was given. But the police may use an untested informant‘s information to supply probable cause if through an independent investigation thеy find corroborating evidence. (People v. Gallegos, 62 Cal.2d 176, 179 [41 Cal.Rptr. 590, 397 P.2d 174]; People v. West, 3 Cal.App.3d 253, 256 [83 Cal.Rptr. 223].) “Such corroboration need not itself amount to reasonable cause to arrest; its only purpose is to provide the element of ‘reliability’ missing when the police have had no prior experience with the informant. Accordingly, it is enough if it gives the officers reasonable grounds to believe the informant is telling the truth, for in this type of case the issue is ‘not whether the information obtained by the officers emanated from a reliable source, but whether the оfficers could reasonably rely upon that information under the circumstances.’ [Citations.]” (People v. Lara, 67 Cal.2d 365, 374-375 [62 Cal.Rptr. 586, 432 P.2d 202]; see also, People v. Davis, 2 Cal.App.3d 230, 235-236 [82 Cal.Rptr. 561].)
We believe that probable cause existed for the issuance of the warrant. Probable cause exists if a man of ordinary care and prudence would be led to conscientiously entertain an honest and strong suspicion that the accused is guilty, or that contraband was present. (People v. Scott, supra, 259 Cal.App.2d 268, 275.) The circumstances involved in the clandestine transaction, plus the conversation that was overheard, which, by reasonable inference in the setting, amounts to an admission that the films were obscene, plus the house as the source of the films, in combination with the FBI information, supply the requisite probable cause for issuance of the search warrant. These circumstances, combined with the admission, not only provided a strong suspicion that the films were obscene, but the ordinary prudent man would certainly entertain an honest and clear con-
The judgment is affirmed.
Reppy, J., concurred.
KAUS, P. J.—The business of this court is too heavy to take the time and make a law review article of my dissenting view with respect to the validity of the search warrant that was used to ransack defendant‘s home and remove therefrom 91 reels of film and 162 “booklets.” I will therefore content myself to outline my understanding of applicable law.
1. I have serious doubts that even if the subject matter of the seizure were ordinary contraband, rather than material which is prima facie protected by the First Amendment, there was probable cause to believe that anything would be found in defendant‘s home. As I interpret the facts all that the magistrate knew, through the affidavit, was that a person whom an unidentified reliable informant had pointed out to an unnamed employee of the F.B.I. as a seller of obscene matter from the back of his car, had left his home carrying a box which he put in the trunk of a car from which trunk four reels of film were later taken by another man, who then went to some pains to conceal them. In addition, of course, there was the snatch of conversation overheard by Officer Monnett.1 This was followed by Ray giving defendant sоme money. We do not know whether this was in payment for the films Ray had just received or was given to enable defendant to purchase more films. Nor is it clear whether defendant‘s description of something—presumably films—referred to the ones he had handed Ray or to others he was about to buy. Certain is that the former were no longer in defendant‘s home, if they had ever been there, and that the observations by the two officers did not justify anyone in believing that after defendant left the gas station he had acquired additional films, which would be found in his home.
We have all handled enough narcotics cases and thus gained knowledge
2. More important, however, I think the court‘s opinion puts the cart before the horse when it concludes that no First Amendment problem is involved because this case involves the distribution and sale of obscene matter or alternatively, that all we have been told by the series of Supreme Court cases both federal and state, which have adverted to the problem of how to search for and seize alleged obscene matter, is that a “stronger” showing of probable cause before a magistrate is required when books and films are involved.2 Surely what the Supreme Court cases teach us is that when the police and the courts deal with material presumably protected by the First Amendment, different procedures are called for.
I do not claim that it is or should be the law that a search warrant for books and films can only issue after an adversary hearing. I do, however, maintain that it should not be the law—and no case I have seen has ever so held—that such materials can be seized on the order of a magistrate whо knows nothing whatever about them except that the person whose home he permits to be invaded has made a statement indicating some connection with motion pictures depicting sexual activity.3
There is, of course, an obvious difference between this case where the warrant authorized a mass seizure of material falling within its broad description, and the several California cases relied on by the People which directed the seizure of specific allegedly obscеne matter (Monica Theatre
Whether or not these cases will eventually pass scrutiny by higher courts5 does not concern me, for it is emphatically clear that they differ from the case at bar in two major respects: first, what the warrant here directed and what the police carried out was not the seizure of a single copy of a specifically designated item, but truly a mass seizure;6 second, there was not even an ex parte hearing оn the question whether the items to be seized were obscene.
One simply cannot approach this case as if the validity of the warrant presented but a Fourth Amendment problem. It may be conceded for the sake of argument that if defendant had been suspected of peddling dope instead of smut, reasonable cause to believe that he was in possession of contraband did exist. However, what relevant Supreme Court decisions have made clear is that the seizure of films and reading matter presents a First Amendment problem. (Marcus v. Search Warrant, 367 U.S. 717, 730-731 [6 L.Ed.2d 1127, 1135-1136, 81 S.Ct. 1708]; Flack v. Municipal Court, 66 Cal.2d 981, 989-990 [59 Cal.Rptr. 872, 429 P.2d 192].)
In considering this problem one must, of course, forget that the successful execution of the warrant did expose defendant as a peddler of hard core pornography. Defendant is not the first of his ilk whose “vindication” has preserved the First Amendment rights of others. As another division of this court said in a very similar case when it felt constitutionally bound to rule in favor of an alleged pornographer: “In reaching this conclusion it
It would be tedious to retrace, once more, the history of Supreme Court decisions dealing with the validity of warrants directing the seizure of matter allegedly obscene. It is sufficient to refer to our Supreme Court‘s review in Flack v. Municipal Court, 66 Cal.2d 981 [59 Cal.Rptr. 872, 429 P.2d 192].
Admittedly no case has been found precisely on all fours with the one at bar, but I strongly suspect that the reasоn for this lack of authority is that no such sweeping attempt to empty a man‘s home—or, for that matter, his place of business—has ever been made on so little evidence that obscene materials would be found.
The problem is not whether an experienced vice officer could reach a reasonable conclusion that material such as was described in the affidavit would be precisely what the search would reveal. The question is, rather, whether on such evidence a mаgistrate could order the seizure of material which could be constitutionally protected, and which no one had even described to him. As the Supreme Court said in Flack: “Although Marcus, Quantity of Books and Stanford [v. Texas, 379 U.S. 476 (13 L.Ed.2d 431, 85 S.Ct. 506)] all dealt with search warrants issued under civil rather than criminal proceedings, [footnote omitted] their common thread seems clear: since obscenity is often separated from constitutionally protected expression by only a ‘dim and uncertain line’ (Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58, 66 [9 L.Ed.2d 584, 590, 83 S.Ct. 631]), purported obscenity maintains, until such time as it is judicially determined to be unprotected speech, the same ‘preferred position’ as does free speech generally (Murdock v. Pennsylvania (1943) 319 U.S. 105, 115 [87 L.Ed. 1292, 1300, 63 S.Ct. 870, 146 A.L.R. 81]), and the ordinary rules of search and seizure are inapplicable to it. Thus, allegedly obscene material cannot be treated in the same manner as contraband such as narcotics and burglar tools for purposes of search and seizure. (Marcus v. Search Warrant (1961) supra, 367 U.S. 717, 730-731 [6 L.Ed.2d 1127, 1135-1136, 81 S.Ct. 1708].)” (Flack v. Municipal Court, supra, 66 Cal.2d at pp. 989-990.)
Compare the present case with A Quantity of Books v. Kansas, 378 U.S. 205 [12 L.Ed.2d 809, 84 S.Ct. 1723]. There the information, the legal equivalent of an affidavit in support of a search warrant, identified 59 novels, each of which was published as a “Nightstand” book. Seven of the
The procedure wаs held to be unconstitutional as an invalid prior restraint on the distribution of matter which presumptively was protected by the First Amendment. The court made no distinction between the seven titles which had been subjected to judicial scrutiny before the issuance of the warrant, and the others. It did not even consider the question whether the books were, in fact, obscene. (See also Marcus v. Search Warrant, 367 U.S. 717, 738 [6 L.Ed.2d 1127, 1139, 81 S.Ct. 1708].)
What differences there are between Quantity and this case, all favor the former: there there was at least an ex parte scrutiny of seven titles and the Kansas statute entitled the person from whom the matter was seized to a hearing in a shorter time than any statute of this state guarantees.
In Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636 [20 L.Ed.2d 1313, 88 S.Ct. 2103], a police officer had actually seen the motion picture involved. His affidavit recited that he had determined it to be obscene on the basis of his viewing of it and of the billboard in front of the theatre. A warrant was issued and the film seized. Without deciding that it would have been necessary for the magistrate to see the picture before issuing the warrant, the court held that it should not have issued on the conclusionary allegation in the affidavit.
Even Lee Art Theatre had more to back up the warrant than does this case. At least the police officer had seen the particular picture involved. Here nobody had seen anything.
On the basis of the authorities, I would feel compelled to reverse if I could find another judge to agree with me.
Appellant‘s petition for a hearing by the Supreme Court was denied November 24, 1971. Peters, J., was of the opinion that the petition should be granted.