Schmitt v. StateSchmitt v. State
We have for review Schmitt v. State, 563 So.2d 1095 (Fla. 4th DCA 1990), which expressly declared valid subsections
I. Facts
In January 1988, the Martin County Sheriff‘s Office received information that Kenneth D. Schmitt was taking nude photographs of his twelve-year-old daughter. Deputies conducted an interview with the child, and based on that interview, a deputy applied for a warrant to search Schmitt‘s house. In their entirety, the factual allegations in the probable-cause affidavit state:
On this date, 1-7-88, your affiant interviewed juvenile Rachel Christine Schmitt, 4-6-75, of 300 E. Salerno Rd., Pt. Salerno, Fl. The interview revealed that the juvenile resides at the premises to be searched, along with her brother and father. She has lived at this residence for the past eight years. The juvenile revealed to your affiant that in 1983 her father, Kenneth Schmitt, had taken numerous nude photographs of her in various poses. These photo sessions started in 1983 and continued through 1987, the last photo session being shortly after Christmas. The juvenile was eight years of age when these photo sessions commenced. The juvenile victim revealed to your affiant that her father had a nude adult white female pose for nude photographs in her presence. The juvenile victim also stated that she has taken nude photographs of her father numerous times.
In December 1987, the father obtained a VHS video recording system. During this time, December 1987, the father utilized the camera to record the juvenile victim and a white female friend disrobe, or as the juvenile described it, stripping down to their panties. The juvenile victim also stated that she has reviewed this same video recording on the premises to be searched. During the same time frame, December 1987, the father utilized the same VHS camera to record the juvenile victim swimming in the nude.
Since 1983 the juvenile victim stated that the father has kept the photographs, films, cameras, VHS recording system, TV, and VCR at different locations inside the premises to be searched.
The above offenses did occur within the county of Martin, Martin County, Florida [sic].
The affidavit then alleged that these facts established probable cause for violations of four statutes. Two of those alleged violations are relevant to this opinion.
First, the affidavit alleged violation of
actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person‘s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.
Second, the affidavit alleged violation of
Based on the affidavit, a warrant was issued and Schmitt‘s house was searched. During the search, deputies discovered videotapes and related material that later formed the basis of the state‘s case against Schmitt. Reserving the right to appeal,
On appeal, the Fourth District rejected Schmitt‘s argument that officers lacked probable cause to obtain the warrant. Although the Fourth District determined that subsection
In this review, Schmitt argues first that the affidavit quoted above was facially insufficient to support a finding of probable cause. Second, he argues that his conviction under subsection
II. Florida Law on Probable Cause
As a legal concept, “probable cause” is not capable of a bright-line test. Rather, it involves a fact-intensive analysis that necessarily varies from context to context. In particular, the courts are required to weigh two interests that usually are in conflict: society‘s recognition that its police forces should be given discretion to investigate any reasonable probability that a crime has occurred, and the individual‘s interest in not being subjected to groundless intrusions upon privacy.
In the past, we have defined “probable cause” as a reasonable ground of suspicion supported by circumstances sufficiently strong to warrant a cautious person in the belief that the person is guilty of the offense charged. Dunnavant v. State, 46 So.2d 871 (Fla. 1950). The reasons cited by the police must be sufficient to create a reasonable belief that a crime has been committed. Florida East Coast Ry. Co. v. Groves, 55 Fla. 436, 46 So. 294 (1908). As long as the neutral magistrate has a substantial basis for concluding that a search would uncover evidence of wrongdoing, the requirement of probable cause is satisfied. Polk v. Williams, 565 So.2d 1387 (Fla. 5th DCA 1990). In the same vein, the United States Supreme Court has noted:
The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for ... conclud[ing] that probable cause existed.
Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983) (emphasis added) (quotation marks omitted).
Confining our inquiry entirely to the four corners of the affidavit, as required by law, e.g., State v. Bond, 341 So.2d 218 (Fla. 2d DCA 1976); see
III. Probable Cause in the Present Case
We note initially that the present case requires the drawing of a very fine line. On one hand, the law is now well settled that simple non-obscene4 nudity in photographs or films is a protected form of expression under the first amendment.5
On the other hand, the Court must be mindful that sexual exploitation of children is a particularly pernicious evil that sometimes may be concealed behind the zone of privacy that normally shields the home. The state unquestionably has a very compelling interest in preventing such conduct.
The two pertinent statutes recited in the probable cause affidavit clearly are aimed at rooting out the sexual exploitation of children. First,
Under Florida criminal law the terms “lewd” and “lascivious” are synonymous: Both require an intentional8 act of sexual indulgence or public indecency, when such act causes offense to one or more persons viewing it or otherwise intrudes upon the rights of others.9 Rhodes v. State, 283 So.2d 351, 356-57 (Fla. 1973) (citing Chesebrough v. State, 255 So.2d 675, 678 (Fla. 1971), cert. denied, 406 U.S. 976, 92 S.Ct. 2427, 32 L.Ed.2d 676 (1972)). The terms “lewd” and “lascivious” thus mean something more than a negligent disregard of accepted standards of decency, or even an intentional but harmlessly discreet unorthodoxy. See Chesebrough, 255 So.2d at 678. Acts are neither “lewd” nor “lascivious” unless they substantially intrude upon the rights of others.
By the same token, it is evident beyond all doubt that any type of sexual
While it is conceivable that one might view the allegations in the present affidavit as depicting simple nudity, we believe the magistrate had a substantial basis for concluding otherwise. The affidavit‘s factual allegations indicated that Schmitt did not treat the nudity of himself, his daughter, and others in the offhand, natural manner that might be expected if the conduct were purely innocent — for example, if they were nudists. Rather, the affidavit shows he made nudity a central and almost obsessive object of his attention. Thus, the magistrate reasonably could have believed that Schmitt‘s conduct toward his daughter included the “lewdness” element required by the statute. While nudity alone would not have sufficed, this overall focus of Schmitt‘s conduct tended to show a lewd intent and thus created a substantial basis for believing that the search would fairly probably yield evidence of a violation of
Second and for the same reasons, the affidavit justified the magistrate‘s conclusion that a violation of
For the above reasons, the decision of the magistrate to issue a warrant may not be disturbed on appeal. The warrant and all that flowed from it was lawful, because the magistrate had a substantial basis for believing that a search of Schmitt‘s home would disclose evidence of a violation of
IV. Constitutionality of Section 827.071
We next turn to the question of whether
As noted above, the court below attempted to eliminate the statute‘s patent overbreadth by reading a “lewdness” element into the statute, Schmitt, 563 So.2d at 1099-1100, a position also endorsed by the state at oral argument. The Fifth District, meanwhile, has remedied the problem by severing the portion of the statute identified as being overbroad. State v. Tirohn, 556 So.2d 447 (Fla. 5th DCA 1990). We now must resolve this conflict.
A. Overbreadth
The question of overbreadth is one of the rare exceptions to the rule that courts will not consider factual questions beyond the scope of the case at hand. “Hypothetical consequences” are considered in the case of allegedly overbroad statutes precisely because this is the only way to give effect to the constitutional right of free speech.
[T]he mere existence of statutes and ordinances purporting to criminalize protected expression operates as a deterrent to the exercise of the rights of free expression, and deters most effectively the prudent, the cautious and the circumspect... .
State v. Keaton, 371 So.2d 86, 91-92 (Fla. 1979) (quoting Spears v. State, 337 So.2d 977, 980 (Fla. 1976)).
The deleterious result of overbroad statutes often is described as a “chilling effect.” Ferber, 458 U.S. at 772 n. 27, 102 S.Ct. at 3362 n. 27; see Broadrick v. Oklahoma, 413 U.S. 601, 611-14, 93 S.Ct. 2908, 2915-17, 37 L.Ed.2d 830 (1973). The overbreadth doctrine and its requirement of considering hypothetical consequences is intended to eliminate this chilling effect and thus allow for the free, unhindered exercise of constitutional rights. Accord
Florida case law is replete with instances in which this Court has stricken an obscenity statute because of its overbreadth after we considered the hypothetical consequences. E.g., Keaton, 371 So.2d at 92-93; Brown v. State, 358 So.2d 16 (Fla. 1978); Spears, 337 So.2d 977 (Fla. 1976). Indeed, application of the overbreadth doctrine is particularly appropriate where, as in Keaton, Brown, and Spears, the statute clearly infringes upon protected forms of pure speech. See Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917-18. However, in the context of free speech and expression issues, the overbreadth doctrine is an unusual remedy that must be used sparingly, especially where the statute in question is primarily meant to regulate conduct and not merely pure speech. Id.; accord
The statute prohibiting sexual performance by children falls into this latter category of cases, since its obvious purpose is to prohibit certain forms of child exploitation. Thus, it is intended to regulate types of conduct and depictions of such conduct that, within the context of this case, also may have some incidental expressive content. See
In its opinion, the Tirohn court found a portion of the statute overbroad that criminalizes certain acts or depictions involving “actual physical contact with a person‘s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast... .” Tirohn, 556 So.2d at 449 (quoting
[T]he statutory definition of sexual conduct as drafted would prohibit possession of a picture of a father bathing his son, two clothed children hugging each other in such a way that their clothed genitals made actual physical contact, or a photograph of a junior high school coach giving a congratulatory smack of the hand to the buttocks of one of his players fully dressed in football uniform.
Id. at 448-49. Many other similar examples are noted by Schmitt in his appellate brief. Schmitt notes generally that virtually any photograph of close physical contact with a minor violates the statute. On the face of the statute, this unquestionably is true. Although these examples are hypothetical, the overbreadth doctrine requires us to consider the potential chilling effect of
Indeed, a comparison of this statute with Florida‘s civil child-abuse statute reveals a puzzling inconsistency. The latter statute clearly is intended to deal with child abuse that does not necessarily rise to the level of being a crime but which nevertheless is harmful to minors. Yet, the civil child-abuse statute contains a far narrower standard than does its criminal-law counterpart contained in subsection
such exposure ... is for the purpose of sexual arousal or gratification, aggression, degradation, or other similar purpose.
may reasonably be construed to be a normal caretaker responsibility, an interaction with, or affection for a child; or ... [a]ny act intended for a valid medical purpose.
The perplexing result is that, under
This serious inconsistency in itself reveals how substantially overbroad subsection
B. Due Process
Schmitt also argues that subsection
As Judge Grimes phrased it in [State v. Walker, 444 So.2d 1137, 1140 (Fla. 2d DCA), affirmed & adopted, 461 So.2d 108 (Fla. 1984)], “without evidence of criminal behavior, the prohibition of this conduct lacks any rational relation to the legislative purpose” and “criminalizes activity that is otherwise inherently innocent.” Such an exercise of the police power is unwarranted under the circumstances and violates the due process clauses of our federal and state constitutions.
State v. Saiez, 489 So.2d 1125, 1129 (Fla. 1986). In other words, a due process violation occurs if a criminal statute‘s means is not rationally related to its purposes and, as a result, it criminalizes innocuous conduct.
Here, there can be no rational reason for the legislature to criminalize the possession of innocent photographs of adults interacting with children, nor do we believe this was the legislature‘s true intent. While the legislature certainly has authority to eliminate child exploitation, it must do so with a reasonable precision that does not simultaneously outlaw innocent conduct and the normal incidents of homelife. As the Fifth District has noted, this statute would render illegal the possession of a snapshot of a parent bathing a baby, among other examples. To the extent this is true, the statute lacks a rational relationship to its obvious purpose and is void under the guarantee of due process.
C. Vagueness
Schmitt further challenges the statute as being impermissibly vague. We find this argument meritless. The statute certainly is not vague, since even its overbroad portion is sufficiently definite in language to tell persons of reasonable intelligence the kind of conduct that is proscribed. See State v. Ferrari, 398 So.2d 804 (Fla. 1981).
D. Alleged Deficiencies in Subsection 827.071(5)
In his brief, Schmitt alleges that subsection
It is unlawful for any person to knowingly possess any photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he knows to include any sexual conduct by a child.
E. Severability
The question remaining is whether the constitutional defects noted above require us to strike all of
This conclusion is supported by the United States Supreme Court‘s recent opinion in Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990), which addressed whether a state court always must strike an overbroad statute in its entirety. There, the Ohio Supreme Court had eliminated the overbreadth of a state child pornography statute by judicially reading a scienter element into it, much like the action taken by the district court below. The Osborne majority expressed reservations about this procedure11 but approved it nonetheless. Thus, the Osborne Court clearly recognized that state courts may adopt a narrowing construction that eliminates statutory overbreadth. We thus must determine whether Florida law permits our own courts to take a similar action.
Tempting as the Fourth District‘s analysis below may seem, we are deeply troubled by its suggestion that a court may read a lewdness element into a statute that plainly lacks one, in its pertinent parts. See
The Florida Constitution requires a certain precision defined by the legislature, not legislation articulated by the judiciary.
Brown, 358 So.2d at 20 (citing
As noted above, the other approach to this problem was that of the Tirohn court, which simply excised the statutory language it found to be overbroad. The Tirohn court did so by resort to a four-part test we recently applied in the case of Waldrup v. Dugger, 562 So.2d 687, 693 (Fla. 1990). This test is used to determine if unconstitutional subunits of statutes are severable. Put another way, the question is whether the taint of an illegal provision has infected the entire enactment, requiring the whole unit to fail.
The four-part test originated in our earlier opinion in Cramp v. Board of Public Instruction, 137 So.2d 828, 830 (Fla. 1962), upon which Tirohn directly relied. Tirohn, 556 So.2d at 449. The Cramp test is as follows:
“When a part of a statute is declared unconstitutional the remainder of the act will be permitted to stand provided: (1) the unconstitutional provisions can be separated from the remaining valid provisions, (2) the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void, (3) the good and the bad features are not so inseparable in substance that it can be said that the Legislature would have passed the one without the other and, (4) an act complete in itself remains after the invalid provisions are stricken.”
Waldrup, 562 So.2d at 693 (quoting Cramp, 137 So.2d at 830). Accord Tirohn, 556 So.2d at 449.
The Cramp test is a well established component of Florida law. It has been applied repeatedly in countless Florida cases, some of which are cited by the Tirohn court.12 556 So.2d at 449. The Cramp test also harmonizes with the nondelegation doctrine, since the test is designed to show great deference to the legislative prerogative to enact laws.
On this question, we first find that the illegal language of subsection
Third, in light of the statute‘s compelling purpose, we believe it self-evident that the legislature would have approved the remainder of the statute without the illegal portion had it appreciated the deficiencies of the latter. Fourth and last, there is no doubt that an act complete in itself remains after the invalid portion has been removed. Waldrup, 562 So.2d at 693 (quoting Cramp, 137 So.2d at 830). The remainder of the statute directly outlaws sexual abuse and sexual exploitation of children in a way that harmonizes with Florida‘s civil child-abuse laws. To this extent, it is entirely permissible.
For the foregoing reasons, we hold subsection
We find that, in light of the foregoing holding, subsections
More to the point, the nature of these other acts is qualitatively different from those described in the unconstitutional portion of subsection
V. Failure to Use the Legal Definition of “Obscenity”
In a separate argument, Schmitt challenges
The law plainly allows a lesser tolerance for depictions of the sexual exploitation of children. Here as in Osborne, the state‘s primary purpose is to destroy the market for such material and thus eliminate the economic incentive for the exploitation itself. Indeed, the exploitation of children for sexual purposes involves a level of heinousness of the highest magnitude. Even if obscenity analysis is applicable in this context, we thus believe that a conviction for possessing depictions rendered unlawful under
(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest ...; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Id. (citations omitted).
The conduct described in
VI. Conclusions
For the foregoing reasons, the opinion below is approved in part and quashed in part. We agree that a substantial basis existed for a magistrate to issue a warrant for the search of Schmitt‘s home. We agree that subsections
It is so ordered.
SHAW, C.J., and OVERTON, BARKETT, GRIMES and HARDING, JJ., concur.
McDONALD, J., concurs in result and dissents in part with an opinion.
KOGAN, J., concurs in part and dissents in part with an opinion.
McDONALD, Justice, concurring in result, dissenting in part.
I would approve the decision under review. We accepted jurisdiction primarily to
On the issue of whether the search warrant was valid, I agree that it was, and concur with the result reached by the majority on this issue. The language of the affidavit for the search warrant, standing alone, did not describe conduct constituting an ongoing crime. As I understand it, however, this is not dispositive. The question to be resolved by the issuing magistrate is whether, because of the sworn known acts, it is probable that the defendant is committing additional or other acts constituting the prohibited crime described in the affidavit. I do not believe the magistrate abused his discretion in concluding that he was. While great care should be exercised in authorizing a search warrant of a private residence, I cannot find that the trial judge erred in issuing the one in this case. I concur in the approval of Schmitt‘s conviction.
KOGAN, Justice, concurring in part, dissenting in part.
I.
I concur in the majority opinion except its conclusion that probable cause existed for the issuance of the warrant, because I do not believe the affidavit alleged anything that may be considered “lewd” or “lascivious” as those terms are defined by Florida law. Here, the probable cause affidavit makes no factual allegation of child abuse, which unquestionably is an intrusion upon the rights of the child. Nor is there any allegation here that the films in Schmitt‘s home were displayed beyond the privacy of the home in such a way as to intrude upon the rights of others. Nothing in the affidavit remotely suggests that the activities depicted in Schmitt‘s films were legally obscene or constituted an intentional intrusion upon the rights of others caused by any lewd act. See Stall; Rhodes; Chesebrough. There is no allegation of any intentional act involving sexual indulgence or public indecency offensive to others. The affidavit alleges only simple nudity.
Indeed, the affidavit shows only that the Schmitts and their friends took photographs of one another in the nude, without any sexual activity or coercion of any sort. While this behavior might be unorthodox, it is no more sinister than the precise same activity occurring in countless numbers of nudist resorts throughout the United States and around the world every day. As the majority notes, intentional but harmlessly discreet unorthodoxy cannot properly be characterized as either “lewd” or “lascivious.” See Chesebrough, 255 So.2d at 678.
I also share the majority‘s concern for the protection of our children. While I in no sense condone any of Schmitt‘s alleged misconduct, I likewise cannot vote to affirm a conviction that arose solely because of a needlessly hasty investigation and an inadequate probable cause affidavit. Here, it is all too easy to toss aside legal requirements that we would not ignore in other less sensationalized contexts. Allegations of child abuse raise strong emotions that render people prone to forget legal strictures.
Thus, I would reverse Schmitt‘s conviction. Such a reversal would not prevent state child abuse officials from taking any actions they deem appropriate to protect the welfare of Schmitt‘s daughter, within the letter of the law.
II.
Despite the objections noted above, I fully concur in parts IV and V of the majority. However, I would address one further issue raised by the parties. Here, Schmitt also argues that subsections
While there is a right to possess pornographic depictions in a private home, Stall, 570 So.2d at 259-60; Keaton, 371 So.2d at 91 (citing Stanley v. Georgia, 394 U.S. 557, 564-65, 89 S.Ct. 1243, 1247-48, 22 L.Ed.2d 542 (1969)), this right is not absolute. The state is entitled to infringe even upon the privacy of the home provided it can demonstrate a compelling state interest achieved through the least intrusive means.16 T.W., 551 So.2d at 1192 (citing Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544, 547 (Fla. 1985)).
As Stanley, Stall, and Keaton recognized, the state‘s interest in infringing upon the privacy of the home is weaker when the aim is seizing or regulating pornographic depictions of adults. In Osborne, the United States Supreme Court noted that one purpose of such efforts is “a paternalistic interest” in regulating people‘s minds. Osborne, 110 S.Ct. at 1696. The United States Supreme Court also has found a lack of evidence establishing that pornography in and of itself leads to deviant sexual behavior or crimes of sexual violence, or somehow diminishes the deterrent effect of rape and battery laws. Id. (citing Stanley, 394 U.S. at 566-67, 89 S.Ct. at 1248-49). Accord
The same conclusions are not true with child pornography. There is absolutely no question that the protection of children is a paramount interest of the state, far more weighty than other interests previously recognized as “compelling” in Florida privacy cases. As the Ferber Court stated:
It is evident beyond the need for elaboration that a State‘s interest in “safeguarding the physical and psychological wellbeing of a minor” is “compelling.”
Ferber, 458 U.S. at 756-57, 102 S.Ct. at 3354 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982). I believe it equally clear that one of the primary purposes of subsection
The second prong of privacy analysis requires the Court to determine whether the state has achieved its compelling interests through the least intrusive means. This issue is closely linked to the question of overbreadth in the context of cases such as the present one, where privacy interests substantially overlap free-expression interests. That is, the interests at stake here include a right of free expression within the privacy of the home and the family unit.
Unlike overbreadth analysis, the primary focus in privacy cases is not on the hypothetical factual consequences of a potentially overbroad statute but on whether the statute in question has used the least intrusive means available to the legislature. In re T.W., 551 So.2d 1186, 1192 (Fla. 1989) (citing Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544, 547 (Fla. 1985)). It is obvious, however, that some consideration must be given to the various consequences of a statute in determining whether the means is “least intrusive.” If the legislature fails to narrowly tailor the statutory language to achieve only its legitimate purposes, then it has failed to choose the least intrusive means. An overbroad statute by definition intrudes where the state has no right to be.
Thus, for the same reasons expressed in the majority‘s discussion of free expression interests, I also must conclude that subsection
The result reached by the majority, however, entirely comports with my conclusions on the privacy issue. By striking the offensive portion of the statute on other grounds, the majority effectively has eliminated the overintrusive part of the statute. I also note, as does the majority, that the 1991 Florida Legislature has amended the portion of the statute being stricken by this opinion. Thus, the present opinion affects only those cases arising under the statute before the amendment‘s effective date of October 1, 1991. See Ch. 91-33, § 1, Laws of Fla. (1991).