296 A.2d 108 (Conn.Cir.Ct. 1972), 1972-3, State v. Anonymous (1972-3)

Docket Nº:ANONYMOUS [*] (1972-3).
Citation:296 A.2d 108, 6 Conn.Cir.Ct. 655
Opinion Judge:JACOBS, Judge.
Party Name:STATE of Connecticut v.
Judge Panel:JACOBS,
Court:Circuit Court of Connecticut

Page 108

296 A.2d 108 (Conn.Cir.Ct. 1972)

6 Conn.Cir.Ct. 655

STATE of Connecticut

v.

ANONYMOUS [*] (1972-3).

No. 1972-3.

Circuit Court of Connecticut.

1972

JACOBS, Judge.

An assistant prosecuting attorney for the Circuit Court, accompanied by members of a municipal police department, entered the defendant's place of business and searched and seized, without a search or seizure warrant, a large quantity of magazines, a long list of which was introduced at the evidentiary hearing. The police report, also introduced into evidence, recites that the prosecutor [6 Conn.Cir.Ct. 656] and detectives went to investigate a complaint that obscene books and magazines were being sold. Once inside the store, they looked around and picked out four magazines. It was determined by the prosecutor that these magazines were obscene. A detective then bought the magazines from the owner and operator, the accused. The total of the four was $22.37. A written receipt was then given to the detective for the magazines. It was at this time that he placed the accused under arrest, after having identified himself. As soon as the accused was placed under arrest, he was informed of his rights. The approximate amount of the items seized was $3102.60. Also seized was $107.

The defendant was charged with a violation of § 53a-194 of the Penal Code, which

Page 109

provides as follows: '(a) A person is guilty of obscenity when, knowing its content and character, he promotes, or possesses with intent to promote, any obscene material or performance.' Obscenity is a class B misdemeanor.

The claim on the motion to suppress, to use the language contained in the motion, is: 'The entrance (into the defendant's place of business) was made without any legal process, without a warrant of search and seizure, without any sort of semblance of warrant or authority issued out of a judicial office, and without express or implied permission of any person on the premises.' In other words, the basic claim is that the procedure preceding the search and seizure was constitutionally deficient.

'The history of American freedom is, in no small measure, the history of procedure.' Malinski v. New York, 324 U.S. 401, 414, 65 S.Ct. 781, 787, 89 L.Ed. 1029 (separate opinion). While this comment was made in the context of criminal procedure, courts have come to realize that procedural guarantees play an equally large role in [6 Conn.Cir.Ct. 657] protecting freedom of speech; indeed, they 'assume an importance fully as great as the validity of the substantive rule of law to be applied.' Speiser v. Randall, 357 U.S. 513, 520, 78 S.Ct. 1332, 1339, 2 L.Ed.2d 1460. Responding to this realization, courts have begun to construct a body of procedural law which defines the manner in which they and other bodies evaluate and resolve first amendment claims-that is, first amendment 'due process.' It is in the obscenity area that the courts have been most concerned with procedural matters. Here the Supreme Court of the United States has fashioned a series of specific rules designed to prevent insensitive procedural devices from strangling first amendment interests. The court has found itself developing a comprehensive system of 'procedural safeguards designed to obviate the dangers of a censorship system.' Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649. Rather than attempting to apply the traditional requirements of due process to obscenity determinations, the Supreme Court has judged the adequacy of procedures by a different standard: Does the procedure show 'the necessary sensitivity to freedom of expression'? Ibid. Central to first amendment due process is the notion that a judicial, rather than an administrative, determination of the character of the speech is necessary. Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, contains the first clear suggestion that, by virtue of the first amendment itself, courts alone are competent to decide whether speech is constitutionally protected.

In Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584, a case challenging the activities of a state obscene literature...

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