419 F.2d 136 (4th Cir. 1969), 12093, United States v. Melvin

Docket Nº:12093.
Citation:419 F.2d 136
Party Name:UNITED STATES of America, Appellee, v. John Herman MELVIN, Appellant.
Case Date:December 02, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 136

419 F.2d 136 (4th Cir. 1969)

UNITED STATES of America, Appellee,

v.

John Herman MELVIN, Appellant.

No. 12093.

United States Court of Appeals, Fourth Circuit.

December 2, 1969

Argued Oct. 9, 1969.

Page 137

[Copyrighted Material Omitted]

Page 138

Ernest J. Howard, Greenville, S.C. (Court-appointed counsel) for appellant.

William B. Long, Jr., Asst. U.S. Atty. (Joseph O. Rogers, Jr., U.S. Atty., on the brief) for appellee.

Before SOBELOFF, BRYAN and WINTER, Circuit Judges.

SOBELOFF, Circuit Judge:

A jury convicted appellant upon a single count indictment charging a violation of 18 U.S.C. § 1462 1 by knowingly taking and receiving from a common carrier certain obscene materials which had been carried interstate.

Appellant's version is that in September, 1967, he was having difficulties with his wife, and left his Tampa, Florida home. He made his departure in great haste and without luggage in order to prevent his wife from 'making off with the car,' which was being repaired at Augusta, Georgia. From Augusta he proceeded to Greenville, South Carolina, where he had previously lived, and then to Spartanburg, S. C., where he intended to see a doctor who had been treating him. Since the defendant's absence from Florida was more prolonged than anticipated and since he intended to visit relatives in the North, he attempted to telephone his son to arrange that his clothing be sent him. When he was unable to reach his son, he called a friend and asked him to deliver his message.

The defendant had a number of suitcases at the son's home. Among them were two blue ones containing clothing and a black one containing admittedly obscene material. The testimony is not clear whether the defendant specifically directed that the black suitcase be sent. In any event, it was the black suitcase, and neither of the blue ones, that was sent.

This suitcase was taken to the Greyhound Bus Terminal at Tampa, Florida, and addressed to the defendant at Greenville. At the Tampa terminal, an FBI agent spoke with the receiving clerk, Max Hollis, and saw the black suitcase addressed as above indicated. Shortly thereafter, Hollis allegedly noticed the title 'Hungry' on a film in this suitcase. The sighting of the title is said to have become possible when one end of the suitcase 'popped open' due to the weight of other luggage piled upon it. (The manner in which this suitcase was said to have opened, disclosing the film, could not be reenacted at the trial.) After this information was relayed to the FBI office in Greenville, a search warrant was sought and obtained. Search of the suitcase disclosed, in addition

Page 139

to some clothing, 28 reels of obscene movies and six decks of playing cards bearing obscene pictures. The FBI agents took the 28 reels to a studio, where portions of six reels were projected on a screen. They then restored the suitcase and its contents to the possession of the bus company.

Two days later, one Bobby Morgan, a Spartanburg taxi driver, appeared at the Greenville terminal to claim the suitcase. He presented the Greyhound receipt which had been issued at Tampa. The suitcase was delivered to him and thereafter the agents recovered it.

The manner in which Bobby Morgan arrived on the scene was fully explained at the trial. The record discloses that the defendant offered L. V. Pye, a service station operator in Spartanburg, $100 to retrieve the suitcase in Greenville, which is approximately thirty miles from his place. It was Pye who in turn arranged for Bobby Morgan to execute the mission. The defendant, on the witness stand, admitted having from time to time sold film (of an unspecified character) to Pye and to others; also that he had a record of convictions under obscenity laws.

I

In support of his challenge to the validity of his conviction, the appellant claims that, as applied to the above facts, the statute under which he was indicted is unconstitutional. For reasons to be stated, we conclude that the statute is not only constitutional on its face, but that under the facts the defendant has brought himself within the condemnation of the statute.

Congress has passed other legislation making illegal the interstate transportation of obscenity by public means or media. 2 The Supreme Court, in affirming a conviction under the statute now in issue, 3 stated that the purpose of this legislation was 'to prevent the channels of interstate commerce from being used to disseminate any matter that, in its essential nature, communicates obscene, lewd, lascivious or filthy ideas.' United States v. Alpers, 338 U.S. 680, 683, 70 S.Ct. 352, 354, 94 L.Ed. 457 (1950). 4 While from time to time arguments have been advanced questioning the wisdom of laws censoring materials thought to be obscene, 5 it is beyond dispute that Congress has the power to forbid interstate transportation of obscenity.

The case of Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, decided this year and relied upon by the appellant, is not to the contrary. There the Supreme Court merely struck down a statute as unconstitutional insofar as it made criminal the mere private possession of obscene material in one's own home. The decision did not deal with congressional power to regulate the interstate transportation of obscene material by common carrier.

The evidence adduced by the Government in the instant case stems chiefly from the search of the suitcase. If this evidence is properly in the case, the statute under which defendant was indicted is clearly applicable. We find no merit in the contention that, as applied to the proven facts, the statute is unconstitutional.

II

A more substantial contention made by the appellant is that the trial court erred in upholding the sufficiency of the affidavit upon which the search warrant was issued. On this point we agree with appellant.

Page 140

A United States Commissioner issued the search warrant upon a supporting affidavit filed by the FBI pursuant to Rule 41(c), Fed.R.Crim.P. This affidavit was the only information from which the Commissioner could determine that probable cause existed to examine the suitcase. The firmly established rule is that 'if an affidavit is the only matter presented to the issuing magistrate * * * the warrant must stand or fall solely on the contents of the affidavit.' United States v. Roth, 391 F.2d 507, 509 (7th Cir.1967). Likewise, in deciding on appeal whether probable cause existed for the issuance of a warrant, this court may consider only the information which was before the Commissioner. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Giordenello v. United States, 357 U.S. 480, 486-487, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

The affidavit contained a preamble expressing the affiant's belief that the suitcase contained obscene materials and seven paragraphs specifying his reasons for this belief. The first paragraph declared that:

1. Information had been received from a confidential source of unknown reliability at Tampa, Florida, on 9-17-67 that a suit case, believed to contain obscene material was being sent via Greyhound Bus Lines from Tampa, Florida to Greenville, South Carolina upon instructions of defendant and addressed to him at Greenville, South Carolina. (Emphasis added.)

Plainly, this paragraph fails since probable cause cannot be predicated upon a tip of an informer of unknown reliability. Aguilar v. Texas, supra; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). The District Judge recognized this defect and held the paragraph insufficient.

Paragraphs two, three and four are also insufficient. 6 They merely verify that a black suitcase had been delivered to the carrier in Tampa for shipment to Greenville. While these paragraphs do provide a measure of support for the informer's tip that a black suitcase was sent, they relate no fact implying any illegal activity. At best, as the District Judge correctly indicated, this information merely supplied a jurisdictional fact by showing that the suitcase moved in interstate commerce. It tells nothing about the character of the contents.

After expressing doubt, the District Judge was persuaded that paragraphs 5 and 6 supported a finding of probable cause. Paragraph 5 recited:

That Max Hollis, an employee of Greyhound Bus Co., Tampa, Florida, reported that he personally observed the suitcase of above described defendant under circumstances and for purposes unknown to affiant and reported having seen a portion of the contents of said suitcase, specifically, a motion picture reel and film bearing the title of 'Hungry.' (Emphasis added.)

Accepting as true the allegedly fortuitous manner in which the reel of the film 'Hungry' became visible, the title itself connotes nothing obscene. 7 A film

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entitled 'hungry' could easily be a documentary concerning hungry children around the world, or almost anything else untainted by obscenity.

In Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), the Supreme Court ruled that probable cause was not established by a police officer's affidavit supplying...

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31 practice notes
  • 362 Mass. 24 (1972), Commonwealth v. Stevens
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • 2 juni 1972
    ...that the police had knowledge that the defendant had previously been convicted of receiving stolen goods. See United States v. Melvin, 419 F.2d 136, 141 (4th Cir.). See also Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223. 'These facts (that the defendant had a record of similar crimes) may be sign......
  • 297 A.2d 363 (Me. 1972), State v. Appleton
    • United States
    • Maine Supreme Judicial Court of Maine
    • 29 november 1972
    ...to great weight. Jones v. United States, 1960, 362 U.S. 257, 270, 271, 80 S.Ct. 725, 4 L.Ed.2d 697; United States v. Melvin, 1969, 4 Cir., 419 F.2d 136. As stated in United States v. Ventresca, supra, 'the resolution of doubtful or marginal cases in this area should be largely determined by......
  • 340 F.Supp. 1033 (D.Md. 1972), Crim. 70-0483, United States v. Focarile
    • United States
    • Federal Cases United States District Courts 4th Circuit District of Maryland
    • 22 februari 1972
    ...hearing on a motion to suppress cannot be used by the trial court to augment an otherwise defective affidavit. United States v. Melvin, 419 F.2d 136, 140 (4th Cir. 1969); United States v. Roth, 391 F.2d 507, 509 (7th Cir. 1967). But if a subsequent hearing discloses gross errors in the asse......
  • 432 F.2d 716 (4th Cir. 1970), 13725, United States v. Cobb
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • 16 september 1970
    ...affidavit. Aguilar v. Texas (1964) 378 U.S. 108, 109, n. 1, 84 S.Ct. 1509, 12 L.Ed.2d 723; United States v. Melvin (4th Cir. 1969) 419 F.2d 136, 140; United States v. Roth (7th Cir. 1967) 391 F.2d 507, 509. [2] Rule 41(e), Federal Rules of Criminal Procedure contemplates that a motion to su......
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31 cases
  • 362 Mass. 24 (1972), Commonwealth v. Stevens
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • 2 juni 1972
    ...that the police had knowledge that the defendant had previously been convicted of receiving stolen goods. See United States v. Melvin, 419 F.2d 136, 141 (4th Cir.). See also Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223. 'These facts (that the defendant had a record of similar crimes) may be sign......
  • 297 A.2d 363 (Me. 1972), State v. Appleton
    • United States
    • Maine Supreme Judicial Court of Maine
    • 29 november 1972
    ...to great weight. Jones v. United States, 1960, 362 U.S. 257, 270, 271, 80 S.Ct. 725, 4 L.Ed.2d 697; United States v. Melvin, 1969, 4 Cir., 419 F.2d 136. As stated in United States v. Ventresca, supra, 'the resolution of doubtful or marginal cases in this area should be largely determined by......
  • 340 F.Supp. 1033 (D.Md. 1972), Crim. 70-0483, United States v. Focarile
    • United States
    • Federal Cases United States District Courts 4th Circuit District of Maryland
    • 22 februari 1972
    ...hearing on a motion to suppress cannot be used by the trial court to augment an otherwise defective affidavit. United States v. Melvin, 419 F.2d 136, 140 (4th Cir. 1969); United States v. Roth, 391 F.2d 507, 509 (7th Cir. 1967). But if a subsequent hearing discloses gross errors in the asse......
  • 432 F.2d 716 (4th Cir. 1970), 13725, United States v. Cobb
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fourth Circuit
    • 16 september 1970
    ...affidavit. Aguilar v. Texas (1964) 378 U.S. 108, 109, n. 1, 84 S.Ct. 1509, 12 L.Ed.2d 723; United States v. Melvin (4th Cir. 1969) 419 F.2d 136, 140; United States v. Roth (7th Cir. 1967) 391 F.2d 507, 509. [2] Rule 41(e), Federal Rules of Criminal Procedure contemplates that a motion to su......
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