Macon v. State

• Decision Date: 02 March 1984
• Docket Number: No. 226,226
• Citation: 471 A.2d 1090,57 Md.App. 705
• Parties: Baxter MACON v. STATE of Maryland. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 705

57 Md.App. 705

471 A.2d 1090

Baxter MACON v. STATE of Maryland.

No. 226 Sept. Term 1983.

Court of Special Appeals of Maryland.

March 2, 1984.

Harry A. Baumohl, Burton W. Sandler, on brief, Towson, for appellant.

Ann E. Singleton, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and Eugene H. Whissel, II, Asst. State's Atty., on brief, for appellee.

Argued before BISHOP, ADKINS and MORTON, JJ.

BISHOP, Judge.

On September 21, 1981, a Prince George's County jury convicted the appellant, Baxter Macon, of violating Article 27, section 418 of the Maryland Annotated Code, which prohibits knowing distribution of obscene material. Fined $500.00 plus $75.00 court costs, appellant asks:

I. Were law enforcement officers required to obtain a judicial determination that there was probable cause to believe the matter distributed by appellant was obscene before they could seize it and arrest him?

II. Did the State fail to prove that appellant distributed obscene matter knowingly?

III. Does the First Amendment protect distribution of material that has not yet been judicially declared obscene?

We reverse on the basis of the first issue, and therefore need not address the other two.

Facts

As part of an investigation of adult bookstores in Prince George's County, Detective Ray Evans entered the Silver News adult bookstore, browsed for about twenty minutes and then selected for purchase two magazines enclosed in a clear plastic wrapper. Detective Evans paid appellant with a fifty dollar bill, from which was taken the $12.00 charge for the magazines. Appellant placed the magazines in a brown paper bag and returned them to Evans, who then left the store. Detectives Sweitzer and Fickinger, who had been waiting in a car parked on a nearby lot, viewed the magazines and decided that, in their opinion, the magazines were obscene matter. Without consulting a judicial officer, they then entered the bookstore with Evans and placed appellant under arrest. They allowed appellant to usher out patrons and close the store before taking him away in handcuffs. When they made the arrest, the officers retrieved the fifty dollar bill that had been used for the "purchase;" ¹ they did not return the change.

Law

Because there was no prior judicial determination of obscenity, and therefore no warrant authorizing the officers to seize the alleged obscene matter or arrest its distributor, appellant argues that the trial court should have suppressed the magazines and dismissed the charges.

A.

The primary question presented for our consideration, then, is whether a judicial officer must decide that there is probable cause to believe that matter is obscene before the matter or its distributor may be seized. We conclude, based on the ensuing analysis, that a warrant is needed to provide a procedural safeguard for freedom of expression protected by the First Amendment. The Supreme Court has declared:

"We held in Roth v. United States, 354 U.S. 476, 485 [77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498], that 'obscenity is not within the area of constitutionally protected speech or press.' But in Roth itself we expressly recognized the complexity of the test of obscenity fashioned in that case, and the vital necessity in its application of safeguards to prevent denial of 'the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.' Id. p. 488 . We have since held that a State's power to suppress obscenity is limited by the constitutional protections for free expression.

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"... [T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn.... The separation of legitimate from illegitimate speech calls for ... sensitive tools...." Speiser v. Randall, 357 U.S. 513, 525 [78 S.Ct. 1332, 1341, 2 L.Ed.2d 1460]. It follows that, under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity as here involved without regard to the possible consequences for constitutionally protected speech."

Marcus v. Search Warrant, 367 U.S. 717, 730, 731, 81 S.Ct. 1708, 1715, 1716, 6 L.Ed.2d 1127 (1961). Accord Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 65-66, 83 S.Ct. 631, 636-637, 9 L.Ed.2d 584 (1963); A Quantity of Books v. Kansas, 378 U.S. 205, 212, 84 S.Ct. 1723, 1726, 12 L.Ed.2d 809 (1964); Tyrone, Inc. v. Wilkinson, 410 F.2d 639, 641 (4th Cir.1969); Europa Books, Inc. v. Pomerleau, 41 Md.App. 114, 121, 395 A.2d 1195 (1979).

The need to protect first amendment rights from government suppression necessitates more stringent application of fourth amendment safeguards in obscenity cases than in other criminal cases. Zurcher v. Stanford Daily, 436 U.S. 547, 564-65, 98 S.Ct. 1970, 1980-81, 56 L.Ed.2d 525 (1978); W. LaFave, Search and Seizure § 6.7(e) (1978); 50 Am.Jur.2d, Lewdness, Indecency and Obscenity, § 12 (1970). Primary among these safeguards is the warrant requirement. The complexity of the test for obscenity, and the need to ensure that constitutionally protected speech is not discouraged, require that the probable cause determination of obscenity be entrusted not to the police officer, who may lack legal expertise or impartiality, but to the judicial officer, whose knowledge of the law, coupled with his neutrality and detachment, qualify him to make such a decision. In Marcus v. Search Warrant, supra, the Supreme Court found that a search warrant authorizing police to seize "obscene ... publications", with no definition of this term to circumscribe their discretion, lacked sufficient particularity:

"It is no reflection on the good faith or judgment of the officers to conclude that the task they were assigned was simply an impossible one to perform with any realistic expectation that the obscene might be accurately separated from the constitutionally protected. They were provided with no guide to the exercise of informed discretion, because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity." 367 U.S. at 732, 81 S.Ct. at 1716.

Accord Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979). See also Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968) (warrant must be based on more than an officer's conclusory assertion of obscenity).

In Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), a county sheriff viewed a sexually explicit film, then, acting without a warrant, arrested the theatre manager and seized one copy of the film. The Supreme Court found that protection of first amendment freedoms could not be left to the whim of a law enforcement officer:

"The setting of the bookstore or the commercial theater, each presumptively under the protection of the First Amendment, invokes such Fourth Amendment warrant requirements because we examine what is 'unreasonable' in the light of the values of freedom of expression.

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The seizure proceeded solely on a police officer's conclusions that the film was obscene; there was no warrant. Nothing prior to seizure afforded a magistrate an opportunity to 'focus searchingly on the question of obscenity.' See Heller v. New York, ante, [413 U.S. 483 at 488-489 [93 S.Ct. 2789 at 2792-2793, 37 L.Ed.2d 745 (1973) ]; Marcus v. Search Warrant, 367 U.S. at 732 . If, as Marcus and Lee Art Theatre held, a warrant for seizing allegedly obscene material may not issue on the mere conclusory allegations of an officer, a fortiori, the officer may not make such a seizure with no warrant at all. 'The use by government of the power of search and seizure as an adjunct to a system for the suppression of objectionable publications is not new.... The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression.' Marcus v. Search Warrant, supra, at 724, 729 ." Id. 413 U.S. at 504, 506, 93 S.Ct. at 2802.

Thus, consideration of first amendment rights necessitates obtention of a judicial warrant as a precondition to seizure of allegedly obscene materials. ² Zurcher v. Stanford Daily, supra, 436 U.S. at 565, 98 S.Ct. at 1981; Flack v Municipal Court for Anaheim-Fullerton, J.D., 66 Cal.2d 981, 59 Cal.Rptr. 872, 429 P.2d 192 (1967); State of New Jersey v. Parisi, 76 N.J.Super. 115, 183 A.2d 801 (1962). See generally Annot., 5 A.L.R.3d 1214 § 4 (1966).

The same reasoning applies to seizure of persons allegedly distributing such materials.

A warrantless arrest is another type of seizure constitutionally required to be reasonable; Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 1379, 63 L.Ed.2d 639 (1980). "An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause...." Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964). Such safeguards are especially important in a case such as this, due to the aforementioned threat the police action poses to constitutionally protected speech.

In Penthouse International, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.1980) the state claimed that police officers could arrest suspects for crimes committed in the officers' presence, including distribution of obscene matter. The Fifth Circuit Court of Appeals responded:

"The problem with appellant's claim is that the ability to make a warrantless arrest for an offense committed in the officer's presence contemplated the officer's ability to determine that an offense has actually been committed. Appellant is attempting to apply a statute normally appropriate for the case of a fleeing robber to items presumptively protected by the First Amendment. Appellant is incorrect in his belief that he or his agents may properly make the initial...