State v. Wedelstedt

• Decision Date: 19 December 1973
• Docket Number: No. 1--56081,1--56081
• Citation: 213 N.W.2d 652
• Parties: STATE of Iowa, Appellee, v. Edward J. WEDELSTEDT et al., Appellants.
• Court: Iowa Supreme Court

Page 652

213 N.W.2d 652

STATE of Iowa, Appellee, v. Edward J. WEDELSTEDT et al., Appellants.

No. 1--56081.

Supreme Court of Iowa.

Dec. 19, 1973.

Donald M. Reno, Jr., Champaign, Ill., and David D. Mitchell, Cedar Rapids, for appellants.

Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., and David Dutton, County Atty., for appellee.

Heard en banc.

MOORE, Chief Justice.

Defendants-appellants seek reversal of their lower court convictions for violation of Code section 725.3, an obscenity statute, first enacted in 1909. They assert the statute is unconstitutional due to vagueness and overbreadth. We agree.

As pertinent here section 725.3 provides:

'Any person who, as owner, manager, director, or agent, or in any other capacity, prepares, advertises, gives presents, or participates in any obscene, indecent immoral, or impure drama, play, exhibition, show, or entertainment, which would tend to the corruption of the morals of youth or others, * * * shall be guilty of a misdemeanor * * *.'

I. On May 8, 1972 Cedar Falls police detective, L. W. Young, filed a search warrant application in the Cedar Falls Municipal Court. In addition to Young's evidence the testimony of James Workman, age 17, was taken before Muncipal Judge Eastman. Workman stated he had viewed a film in an identified coin-operated machine at the Danish Book World, 1828 Waterloo Road, Cedar Falls, Iowa and that it showed a girl committing acts of sodomy on two males and also showed the girl reading a dirty magazine while masturbating. The Judge issued the requested search warrant for the specific film viewed by Workman. The search warrant was immediately executed and the film seized from the identified machine.

On May 12, 1972, after notice to the proper parties, a hearing was held to determine if the film should be forfeited as obscene material. At that hearing Judge Eastman viewed it. The Judge found the film to be obscene and ordered forfeiture. He provided the film be held as evidence. Defendant Edward J. Wedelstedt, manager, defendants, David A Cory and Wayne Davis, employees, of Danish Book World, in the search warrant proceeding and subsequent criminal case, contended the film seizure was illegal and unconstitutional because there was no adversary hearing prior to the seizure. They jointly raise that issue by proper assignment of error on this appeal. We first consider that assignment.

Heller v. New York, 413 U.S. 433, 93 S.Ct. 2789, 37 L.Ed.2d 745, decided June 25, 1973, is dispositive of the constitutional question here raised. The Supreme Court stated:

'* * * This court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. See Times Film Corp. v. Chicago, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961); Kingsley Books, Inc. v. Brown, 354 U.S. 436, 440--442, 77 S.Ct. 1325, 1 L.Ed.2d 1469, (1957). In particular, there is no such absolute right where allegedly obscene material is seized, pursuant to a warrant, to preserve the material as evidence in a criminal prosecution. * * *.' (413 U.S. at 433, 93 S.Ct. at 2792, 37 L.Ed.2d at 751).

'(S)eizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film. If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible. In addition, on a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary proceeding. Otherwise, the film must be returned.' (413 U.S. at 435, 93 S.Ct. at 2794--95, 37 L.Ed.2d at 754).

Regarding the question of determination of probable cause for issuance of a search warrant in State v. Spier, Iowa, 173 N.W.2d 854, 859, we say:

'Thus a magistrate is required to make an objective determination of the factual situation presented to him on oath or affirmation, mere subjective findings or conclusions of an applicant-officer being insufficient and of no probative value. See Beck v. Ohio, supra, at 379 U.S. (89) 97, 85 S.Ct. (223) 229 (13 L.Ed.2d 142).'

In this case the neutral magistrate did not issue the search warrant based on probable cause until after taking the evidence of Workman in addition to that of officer Young.

Under the record, the holding in Heller v. New York, supra, renders untenable defendants' contention the film seizure was illegal and unconstitutional.

II. On May 9, 1972, preliminary informations were filed charging Wedelstedt, Cory and Davis with violation of Code section 725.3. County attorney's true informations were filed against each of the three men on June 27, 1972. At defendants' request the three cases were consolidated. After adverse rulings on their joint motions to quash the search warrant and to suppress evidence, defendants were allowed to withdraw their former not guilty pleas and file a joint demurrer. They therein asserted the statute violates both their First (free speech and press) and Fourteenth (due process) Amendment rights under the Constitution of the United States. They attacked section 725.3 as unconstitutionally vague and overbroad.

The constitutionality of a statute under which a party is charged with a crime may be raised by demurrer. State v. Ramos, 260 Iowa 590, 597, 149 N.W.2d 862, 866; Chicago & N.W. Ry. Co. v. Fachman, 255 Iowa 989, 992, 993, 125 N.W.2d 210, 212.

The demurrer was overruled as to each ground thereof. Defendants refused to enter pleas thereafter but chose to stand on their demurrer. Pursuant to Code section 777.10 the trial court found judgment should be entered against them. Defendants requested immediate sentencing. Wedelstedt was sentenced to six months in the county jail and finded $1000. Cory and Davis were each fined $500. At their request defendants' appeals have been consolidated.

The constitutionality of section 725.3 is for the first time being challenged in this court. However, during the last two decades the United States Supreme Court in many decisions involving similar state obscenity statutes have declared them unconstitutional in violation of the First and Fourteenth Amendments. The vexing problems involved are clearly demonstrated by the lack of uniformity of opinions by the members of the court.

During the last fifteen years the Supreme Court failed to file a clear majority holding until the lead case of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, and companion cases of Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446; Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492; United States v. 12 200-Ft. Reels, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500; and United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 512, all decided June 21, 1973. By five to four holdings on June 21, the court arrived at standards for testing the constitutionality of state legislation regulating obscenity.

Citation and discussion of pre-Miller opinions are found therein. See also Annot., 5 A.L.R.3d 1158, Modern Concept of Obscenity, and 21 Drake L.Rev. 314, (January 1972), The Status of Iowa's Obscenity Laws. Repetition here would unduly lengthen this opinion.

We are bound by the latest pronouncements of the Supreme Court bearing on First and Fourteenth Amendment rights. We therefore quote extensively from Miller:

'This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972). United States v. Reidel, 402 U.S. 351, 354, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971). Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). 'The First and Fourteenth Amendments have never been treated as absolutes (footnote omitted).' Breard v. Alexandria, supra, 341 U.S. 622, at 642, 71 S.Ct. 920, 95 L.Ed. 1233, 35 A.L.R.2d 335 (1951), and case cited. See Times Film Corp. v. Chicago, 365 U.S. 43, 47--50, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961); Joseph Burstyn, Inc. v. Wilson, supra, 343 U.S. (495) at 502, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, 390 U.S., 676, at 682--685, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968). As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

'The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, 408 U.S., at 230, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972), quoting Roth v. United States, supra, 354 U.S., at 489, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), (b) whether the work depicts or describes,...