*1 STATE JOSEPH WELKE. N.
216 W. 641.
March 43554. 1974No. Milavetz,
Robert J. appellant. for Keith Stidd, City M. Attorney, Vavreck, and Edward C. As- City Attorney, sistant respondent.
Peterson, Justice. Minneapolis violating obscen convicted of
Defendant was 870.080, Ordinances, ordinance, Minneapolis § Code of ity *2 magazine “Kronus.”1 Two exhibiting entitled selling a appeal merit considera by on this defendant the issues raised “Kronus,” including should evidence, (1) the tion: Whether arresting by the suppressed impermissibly obtained have been the conviction importantly, whether police officers and more any of the obscen constitutionally construction under may stand ity ordinance. police plainclothes evening January two
On the Hennepin Avenue Discount Book Store on entered the officers Joseph Welke, defendant, A. Minneapolis in in which downtown through browsing store for the employed a After clerk. was magazines, “Kronus,” minutes, the three officers selected several “Candida,” displayed “Candy Boxes,” of which the covers brought magazines to a checkout the nude women. officers standing, conversation where and after some counter Welke magazines “buy him, purchased with the officers the with superiors provided. money” which had their Having store, purchases, the officers left the con- their made briefly officer, reentered with third and then ferred outside police then the with other officers. Welke was bookstore several thereupon placed conducted The officers a search under arrest. during hours, approximately lasted of the bookstore which 1/2 “buy money” and, addition, they in seized which retrieved the magazines large the store. The officers number of other from a search warrant. did not have pretrial suppression of
Defendant made a motion for the by evidence obtained the of the At the search bookstore. conclu- Municipal Hennepin Defendant was first convicted in Court of the County. jury the Dis- He de in thereafter obtained a trial novo before County. appeal Hennepin the convic- trict is from latter Court of This denying post-trial tion and an order his motions. pretrial hearing,
sion Rasmussen court stated that no ruling suppression necessary on the motion was “because there sought is no evidence by be introduced search and seizure or by interrogation.” state, trial, only custodial at introduced magazines the three purchased by police which had been attempt any officers and did not to introduce of the other mate- Although rials charged only having seized. defendant was with “Kronus,” objection sold no was made to the introduction of the magazines except other purchased, they two to reassert that were products of an unlawful search and seizure. argues magazines
Defendant that the sale of the three police officers was not illegality a bona fide sale and that the subsequent requires search suppression bookstore materials, including magazines return all pur- the three subjective chased. Whatever intent of the two officers been, however, they the transaction obtained three magazines exchange money cannot be considered a search agents willing seizure. Purchases undercover from sellers, places private bookstore, far more than a were held Lewis *3 States, v. United 2d (1966), to violate the Fourth Amendment. additionally post-trial
Defendant made a motion to order the police officers to return all the materials. The determinative issue here is not whether the search warrantless of the bookstore and the massive seizure of materials which followed defendant’s arrest impermissible, but whether standing defendant has to any raise the issue. He clerk ownership was a without interest indeed, in and, longer the employed bookstore no even the police Minneapolis The store. officials of have declared that materials upon request. be returned would to the owners their appear aggrieved Since defendant person does not to be “[a] by an unlawful meaning search and seizure” within the of Minn. 626.21, St. standing, he had properly ruled, no as the trial court return demand of the seized materials.
The crucial more issue the convic- for decision is whether any construction constitutionally under stand tión application ordinance, in its obscenity Minneapolis particularly time this arise the first These defendant. issues to this obscenity the United enunciated new tests of state under the California, Supreme v. Miller Court States companion (1973), cases.2 and its ed. 2d 419 37 L. the term “obscene” ordinance defines obscenity in Roth language tests formulated precise constitutional 1304, 1 L. Ct. States, 354 U. S. 77 S. ed. United v. by providing as follows: exhibit, any sell, person knowingly print, unlawful for
“It is distribute, sell, give away, circulate, publish, attempt offer any book, magazine, pamphlet, paper, obscene to distribute circular, print, picture, photo- writing, card, advertisement, instrument, film, image, statue, graph, play, picture motion drawing, article which is obscene. ‘Obscene’ for or other as follows: purpose of section is defined Whether standards, contemporary community average person, applying appeals to taken as a whole theme of material the dominant Ordinances, Minneapolis prurient Code 870.080. interests.” § obscenity incorporated Roth, obscenity in the state tests of obscenity ordinance, Minneapolis were statute well as stringent A subsequently more in Book Named “John Cle- made (commonly known as
land’s Memoirs of Woman of Pleasure” Hill) Attorney Fanny General, 383 Ct. U. S. v. (1966) opinion). (plurality That case L. ed. added, element, prove it es- as a third that to must be 2d 446 Paris Adult (1973); United Theatre I v. States v. Slaton, 200 Ft. Reels of 413 U. 93 S. Super Ct. 8MM. Film, 37 L. Kaplan California, (1973); 93 S. Ct. ed. 2d 500 Orito, (1973); 93 S. United States *4 139, 2674, (1973); 93 S. L. ed. 2d v. Vir 413 U. S. Ct. Alexander ginia, 836, 2803, (1973); S. 413 U. 93 S. Ct. 37 L. ed. Heller v. New 2d (1973); York, Ken 413 U. S. 93 S. Ct. L. ed. 2d v. Roaden (1973). tucky, ed. 413 U. S. 37 L. 2d 757 “utterly tablished redeeming the material without social This effectively value.” added element was thereafter read into our Carlson, state statute in State Minn. N. W. 2d 421 California,
In Miller v. companion 2d 419 cases, and its the United States Su preme Court announced the formulation of constitutional new Abandoning obscenity. tests for the Roth-Memoirs tests as un workable, the proposition court reiterated that obscene mate protected by rial is not the First Amendment then enun following (413 ciated standards 430): ed. “* * * designed regulate State statutes obscene materials * * * carefully
must result, be limited. As now a we confine permissible regulation scope depict of such which works or describe sexual specifically That conduct. conduct must be applicable law, defined state as or authoritatively written construed. A which, state offense must also be limited to works whole, appeal prurient taken as a sex, interest portray sexual patently way, which, conduct in a offensive whole, taken a literary, artistic, political, do not have serious or scientific value. guidelines (a)
“The basic for the trier of fact must be: wheth average person, er applying ‘the contemporary community stand work, ards’ whole, find that the appeals would taken as a ** prurient *; (b) interest depicts whether work or de scribes, patently way, specifically offensive sexual conduct applicable law; (c) defined work, whether the whole, literary, taken as artistic, political, lacks serious or adopt scientific do value. We constitutional standard the redeeming ‘utterly without social value’ test Memoirs Mas sachusetts, [383 U. * ** » 6] significant
The most difference the new formulation is the requirement conduct, depiction description that the sexual
407 appli- by the specifically defined prohibited, must be of which is Al- authoritatively construed. law, cable as written or state gave schemes, regulatory it though propose court the declined for define following examples could of what a state statute the 431) 2615, 2d : regulation 25, L. ed. (413 93 37 S. S. U. Ct. descriptions of '“(a) representations or Patently offensive acts, perverted, or simulated. actual ultimate sexual normal or descriptions of Patently representations “(b) or offensive the masturbation, excretory functions, and lewd exhibition of genitals.” legisla Minneapolis a clear
The ordinance manifests obscenity obscenity proscribe to the extent with intent consistent tive govern “Obscene,” purposes of for constitutional limitations. except longer meaningfully in regulation, ment is no defined in an ordinance or statute is there constitutional terms. Its use judicial susceptible construction conform fore of authoritative regulatory pattern guidelines artic the and authorized able with seemingly sort, moreover, of ulated Miller.4 Construction this by Miller, the in which the Chief Justice invited said 6, 430): (413 ed. 2d court U. note S. Ct. L. S. * * * * * * that must now enact not hold all States
“We do existing statutes, con- Other obscenity new statutes. state hereafter, adequate.”5 well be strued heretofore States, 1304, 1309, 1 354 U. L. In Roth United 1498, 1507 of “the Mr. Justice Brennan took note universal judgment obscenity restrained, be reflected in the interna should nations, agreement obscenity of the over 50 laws all tional Congress States, obscenity from and in the enacted laws 1842 to 1956.” prohibition ob The of the ordinance identical in text is state statute, punishment. 617.241,except only The scenity as to Minn. St. Minneapolis is construction of the term ordinance “obscene” in accordingly respect use term in authoritative with same statute. adopted Supreme course The United Court has itself States judicial 200-Ft. construction of statute as noted United States sentence, ordinance, in its first purpose as stated of the second sen- proscribe any article “which obscene.”
tois tence, terms, simply recites in constitutional as a definition constitutionally-limited “obscene” in effect Roth definition of Film, Super note 8MM. Reels “* * * (1973): duty do [W]e authoritative ‘ constitutionality ly construe federal statutes where “a doubt serious ’ ‘ fairly possible is raised” and “a construction of the statute is ’ Thirty-seven question may be avoided.” United States v. Photographs, 830] [91 402 S. *6 (1971) J.), quoting (opinion White, Benson, 285 from Crowell v. 22, (1932). 598, [52 62 S. L. such 619] 76 ed. If and when vagueness ‘obscene,’ ‘serious doubt’ is raised words ‘lascivious,’ ‘lewd,’ ‘filthy,’ ‘indecent,’ or ‘immoral’ as used to describe regulated 1305(a) 1462, in 19 material C. 18 § and U. C. see § Orito, 140, 139, 1, United States v. [413 note 93 S. Ct. (1973)], prepared 2d arewe to construe such terms as
limiting regulated patently representations material offensive or descriptions specific given of that ‘hard core’ sexual conduct as exam ples California, ante, in Miller v. [413 U. S. Photographs, (1973)]. Thirty-seven 2d See United States v. sup ra, 1404-1407, (1971) at 369-374 [91 Ct. 2d L. ed. 829-833 ] (opinion White, J.). course, Congress always Of could define other specific Appeals ‘hard core’ conduct.” The Fifth Circuit Court of Thevis, (5 1973), United States v. 484F. 2d 1149 Cir. thereafter held that gloss the definition of Miller USCA, that had been added § 1462. response appellate precedent courts to this has been uniform. presently Courts of six states either construed or deemed prior legislation their construction of state consistent with Price Miller: Commonwealth,
v.
(1974);
Va.
Pap
State,
nowWe regu- legislative enactments and like as used in this ordinance publica- obscenity, lating prohibiting to embrace articles or descrip- representations or patently offensive tions which are perverted, acts, actual or normal or of ultimate sexual tions descrip- representations simulated, patently or offensive excretory masturbation, functions, exhibition and lewd tions of genitals. this, may ordinance A be convicted under or like defendant statute, fact find under the evidence: or if the trier of (1) depicts describes, patently in a That the material explicated above; way, offensive sexual conduct as average (2) person, applying contemporary com- that to munity standards, material, the dominant theme of taken appeals prurient matters; whole, as a interest such material, (3) whole, taken liter- lacks serious artistic, ary, political, or scientific value.
Whether,
average person applying contemporary
to “the
com
“patently
material
munity
“ap
standards” the
offensive” or
peals
require
prurient
does not
interest”
assistance of
expert testimony
question
and is a
fact
for the trier of fact
*7
,6
itself,
placed
material
determine from the
when
in evidence
Wedelstedt,
declared it
v.
(Iowa,
unconstitutional: State
obscene, instructions on based content, textual was devoid of “Kronus” tests. Roth-Memoirs who, for all exclusively of women consisting photographs grossly postured nude and who were practical purposes, were regions. Implicit genital give display to prominent so as to average findings that, person, jury’s verdict in the were community standards, the dominant contemporary applying (1957), “represents 1469, 1478 a cross-section of the communi 1 L. ed. 2d average per reflecting aptitude special the view of the ty and has “community” consists determine whether need not now son.” We governmental geographical subdivision smaller than area or indeed, statute or, may be where a state whether it different as a whole prosecution. municipal It is clear is the ordinance basis rather than a longer v. a whole. Miller only the nation as the term no means L. ed. 2d California, (1973). contempo prurient piece that affronts will redeem a The value that standards, paraphrase apt community of Mr. Justice
rary words II, I—A W 53 Wis. 2d Heffernan in State oman — Part test, “a minis Roth-Memoirs is not under the W. 2d N. value, ‘iota,’ value, infinitesimal an a mere scintilla of social cule finder value,” discernible to a reasonable value that is but “a social is Ray, Minn. demonstrable, conjectural.” fact, Cf. and not State 315, 318 104, 109, 193N. 2dW. *8 magazine appeals prurient the taken a to in
theme of as whole magazine utterly redeeming and that the without terest explicit present value.8 Had our definition of the social word “obscene,” obscenity ordinance, as used in the been available instructions, jury a for basis the trial court’s could well have photographs found “Kronus” to be “lewd exhibition a of genitals.” conviction, nevertheless,
The cannot because stand defend legislative not proscription ant did have that clear notice of the requires. necessity which fundamental fairness of a clear warning moreover, important, is when a to particularly line is protected unprotected speech.9 be drawn between and The sev- guideline by new Miller of the trier fact must determine work, whole, artistic, literary, “whether the a taken as lacks serious political, value,” California, 15, 24, or scientific Miller v. U. 2607, 2615, (1973), demanding S. Ct. less on seems prosecution “utterly than the former test of re- Memoirs without deeming social A value.” Book Named “John Cleland’s Memoirs Attorney General, Woman Pleasure” v. U. S. Ct. test, therefore, might subject This new penalties subject criminal not materials so at time of defendant’s Defendant, however, arrest. had the of the benefit court’s instruction according stringent to the more Memoirs standard. Supreme addressing Court, recently The United States vice vagueness Grayned City Rockford, * * “* Vague 33 L. ed. 2d said: laws offend important First, several values. because we assume that man is free steer conduct, give between lawful and unlawful we insist laws person intelligence ordinary opportunity reasonable know prohibited, accordingly. Vague may what so that he act laws trap providing warning. Second, arbitrary the innocent fair if discriminatory prevented, provide and enforcement is to be laws must explicit vague apply impermis- standards for those who A them. law delegates sibly policy policemen, judges, juries basic matters subjective on basis, resolution an ad hoc and with the attendant dan- gers arbitrary discriminatory Third, related, application. but vague upon where First ‘abut[s] statute sensitive areas of basic ‘operates freedoms,’ Amendment it to inhibit exercise of [those] companion were concerned cases opinions eral in Miller and its speech with protected avoiding infringements on both with *9 expressing the In affording potential defendants. notice to fair judicial to achieve standards majority workable formulation of Burger in Miller stated objectives, Chief Justice these dual Mr. 432): (413 27, 93 37 L. S. Ct. U. S. subject today, holdings no will be one announced
“Under exposure materials un- of obscene prosecution for the sale to depict patently ‘hard offensive or describe these materials less by regulating specifically defined conduct sexual core’ specific that these law, We are satisfied or construed. as written provide notice to a dealer such mate- fair prerequisites will bring prose- may public commercial activities that his rials cution.” at the time of defend nor construed
Neither written comport requirement ordinance with did the arrest ant’s by ration imposed fair notice specificity Miller. basic Since conduct, requirement specifically defined sexual ale for present the ordi that a construction of persuaded we are not requisite respect made over notice with to sale nance affords “[a]part Miller, from the years ago.10 court noted As majority case, Court in the Roth no initial formulation agree any given time to on a to deter been able standard at has subject obscene, pornographic material constitutes mine what police power.” 413 regulation under the States’ to If the court itself was unable to 429. ‘ meanings inevitably lead to “steer far citizens freedoms.’ Uncertain * * * than if forbid- unlawful zone” the boundaries of the of the wider ” clearly marked.’ den areas were (413 the footnote comment in Miller not unmindful of We are 430) existing statutes, “as 38 L. ed. 2d that con- note adequate.” (Italics hereafter, may sup- well be heretofore or strued Miller was intended to think a construction plied.) We do not after alleged City Columbia, Bouie apply Miller. Cf. an offense before 12 L. ed. 2d 894 subject regula precise formulate a definition of the materials tion, it would be unfair to assume that this defendant should precisely subject regulation known what under materials were public today’s the ordinance.11 The notice interest is served engaged sleazy pornography they to those in the business may longer refuge no take constitutional under an umbrella of uncertainty. statutes, prin-
Ordinances and much more than constitutional changeable. ciples, only present text, are construe them We searching legislative frequently intent a constitutional within course, misperceived legislative today context. Of if we have any legislative intent or it at if time become the intent any upon legis- abolish or all publications, restraints obscene body lative will manifest its intent other enactments.
Reversed.
Otis, (concurring result). Justice in the *10 necessary
All that is
appeal
for decision in this
is our unani-
holding that the
mous
conviction “cannot stand because defend-
legislative
ant
not
did
have that clear notice of the
proscription
requires.”
which fundamental
fairness
That should end the
opinion
pure dictum,
matter.
remainder of the
is
as the
prognosticating
must concede.
majority
simply
We are
what
adopt
appeals
rules we will
when future
are taken without
having
parties
the benefit of a trial at which
offer evidence
Carlson,
didWe
undertake in State v.
294 Minn.
202 W. 2d
N.
(1972),
meaning
many post-Redrup
to find
(Redrup
in the
v. New
York,
[1967]),
386 U. S.
87 S. Ct.
18 L.
summary
ed. 2d 515
re
obscenity convictions,
including
Hoyt,
versals
State v.
286 Minn.
(1970), reversed, Hoyt Minnesota,
and approach accept I cannot present a record for review. confused and dimensions, one which has problem to of these sociologists, judges, law-enforcement lawyers, confounded in law. any issue the criminal much as other officers as litiga- By disposition of future prognosticating intended our suggest others the rules we tion, or to do not bind ourselves we rely on those who contrary, may but, seriously on the mislead expertise special I not have such that we do them. submit confidently complex area with- adopt law rules of in this canwe legislature a voice for- permitting the or out bar mulating policy. California, 413 Supreme Court Miller v.
The United States not and did could legislature require adopt law or courts rules of our Supreme punishable within the Court make limits authority specifying That court’s is confined has defined. pass It laws Federal constitutional muster. cannot what governing subject. any other mandate state laws pornography Nevertheless, majority opinion adopts perime- the extreme holds, way Supreme ters of laws which the Court of dictum engraft also, tolerate, it and we limits verbatim those onto would longer which are no ordinances and statutes viable under the ruling. Miller replace
It not our either to draft function criminal laws to down Miller or to construe our those struck constitution in system it responsi- our Federal vacuum. Under is the exclusive bility court, court, of this no other to make the ultimate deci- legislation sion of conforms Minnesota what Constitution given not. major- and what does No consideration has been ity opinion validity of the rules proposed in Miller meas- *11 against provisions ured Minnesota Constitution. On important issue, controlling Miller is but constitutes only precedent. prestigious against sum, abdicating respectfully protest preroga-
In I our tive duty and our to scrutinize and decide for ourselves these important case-by-case By pursuing issues on a basis. the course adopt, deny right we public we its what notice of rules of conduct we intended important, consider More decision. legal we invade hearings, thicket without the benefit of such legislature requires, as the and without the benefit of a consider- arguments ation of briefs experienced by counsel who are knowledgeable dealing with this difficult and volatile field of human behavior.
Accordingly, except result, I major- dissent from the ity opinion defer, presented and would until in a traditional adversary proceeding, the resolution of issues not now before us. v. ROBERT O.
STATE CARLSON.
STATE v. RUSSELL A. HOELSCHER.
216N. W. 2d 650. 1, 1974 Nos. 43238, 43239, 43242. March Per Curiam.
Defendants Robert 0. Carlson and Russell were A. Hoelscher selling displaying convicted of obscene books and obscene movie City films in violation of the ordinance of the of St. Legislative Paul, Code, Paul St. 476.01. cases consoli- were § appeal Carlson, dated on and affirmed State Minn. Supreme Court, N. The United W. States
granting petition certiorari, for writ of Minnesota, Carlson v.