B.A.P., Inc. v. McCulloch, 98-1753EM
| Decision Date | 26 February 1999 |
| Docket Number | No. 98-1753EM,98-1753EM |
| Citation | 170 F.3d 804 |
| Parties | B.A.P., INC., Appellant, v. Robert P. McCULLOCH, Prosecuting Attorney of St. Louis County, Mo.; Ronald A. Battelle, Col., Chief of Police, St. Louis County Police Department, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Murry A. Marks, St. Louis, MO, argued (Jason S. Marks, on the brief), for Appellant.
Michael A. Shuman, Clayton, MO, argued (John A. Ross, on the brief), for Appellee.
Before: RICHARD S. ARNOLD and FAGG, Circuit Judges, and DAWSON, 1 District Judge.
B.A.P., Inc., filed this complaint for declaratory judgment and injunction to determine whether a Missouri statute which sets out the procedure for obtaining search warrants for obscene material is unconstitutional on its face or as applied. The District Court 2 found that the failure of the Missouri statute to include the procedural safeguards urged by B.A.P. did not render the statute unconstitutional, and that the statute as applied to B.A.P. conformed to all relevant constitutional standards. B.A.P., Inc. v. McCulloch, 994 F.Supp. 1131 (E.D.Mo.1998). We affirm.
The St. Louis County Police Department began investigating B.A.P., Inc., for suspected violations of the Missouri obscenity statutes 3 in the late spring of 1997. Over several occasions, undercover officers purchased a total of eight videos and three magazines from a business operated by B.A.P. known as California Erotic Novelties located in an unincorporated area of St. Louis County. After watching the videos and looking through the magazines, the officers consulted with the St. Louis County Prosecuting Attorney's Office and decided to apply for a search warrant under Mo.Rev.Stat. § 542.281. 4 The application for the search warrant, the accompanying affidavit of the investigating officer, Detective Ostendorf, and the warrant itself, all state that "[o]bscene material in violation of RSMo. 573.030 is being kept and/or displayed upon the premises" of California Erotic Novelties. Each of these documents contains identical lengthy definitions of "obscene" based on the definition used in the Missouri statute. At the conclusion of these definitions the documents state, "said video cassettes and magazines are proscribed by Section 573.030 RSMo ... as follows: [at this point the titles of the various materials are listed]." Each document then continues, "and all other items contained in and on the premises ... that depicts [sic] sexual conduct as follows...." The definition of obscene used above is then substantially repeated.
Ostendorf's affidavit contains a brief description of several of the videos detailing the nature of the sexual conduct depicted, and recounts statements made to her during her undercover visit to California Erotic Novelties by its employees that the videos were rated "XXX" and were "hard-core pornography." Ostendorf also attached photocopies of the video box covers and front covers of the magazines to her affidavit. Ostendorf and a representative of the Prosecuting Attorney's Office then presented the application and affidavit to Circuit Judge O'Toole, who examined the materials, briefly questioned Ostendorf, and then issued the warrant. Prior to the execution of the warrant, members of the St. Louis County Police Department, after consultation with the St. Louis County Prosecuting Attorney's Office, met in order to discuss the criteria for seizure under the warrant. During the course of this meeting, a "three-pronged test" was referred to and was later used by the officers conducting the search. Under this test, the material had to 1) be "XXX-rated;" 2) have genitalia displayed on the covers or within the material seized; and 3) have sexual acts portrayed in a "non-literary or artistic manner."
Using this guideline, the officers conducted a search of California Erotic Novelties on September 16, 1997, that lasted approximately ten hours and resulted in the seizure of 4189 videos and 2118 magazines. On October 20, 1997, the State of Missouri, St. Louis County, filed an eleven count information against B.A.P. and three of its employees for promoting obscenity in the second degree. Counts One through Eight and Count Eleven arose from various undercover sales in May, July, and August of 1997; Counts Nine and Ten were based on a video and magazine seized during the execution of the search warrant.
On October 23, 1997, the District Court held a hearing on the preliminary injunction. Peter Pigman, an employee of B.A.P. who was on duty at California Erotic Novelties at the time of the search, testified that after the search was completed, the store was virtually cleaned out of merchandise (Tr. 24). Pigman also testified that approximately seventeen previously unopened boxes full of videos were seized, as well as multiple copies of many videos and magazines. Detective Ostendorf confirmed during her testimony that she seized several boxes of previously unopened videos after opening the boxes and examining the titles (Tr. 93), and also testified that, to her knowledge, the search warrant gave her the authority to seize multiple copies of videos and magazines (Tr. 98). As to the manner in which the material was seized, Ostendorf stated:
With the magazines, I personally seized all of those, so how I did it is: I didn't open the magazines and read them. All I did is anything on the front cover that either showed a sex act in a graphic nature, in an offensive nature type, or it showed genitalia in a non-artistic form, was seized.
(Tr. 119.) Ostendorf further testified that the same basic procedure was followed for the seizure of the videos, that is, the decision on whether to seize was made after a brief perusal of the pictures on the box.
The attorney for B.A.P. then questioned Robert P. McCulloch, Prosecuting Attorney of St. Louis County, about whether it would be necessary to introduce anything other than the actual videos sold to the undercover officers in order to prosecute the misdemeanor counts. McCulloch explained that the charge of promotion of obscenity requires the State to prove that the defendant knew the character and content of the material, and that the other tapes might be needed to show that knowledge. In addition, McCulloch speculated that the other tapes could potentially form the basis of additional charges. The following exchange then ensued:
However, our evidence, and I'm not prepared to try the case right now, but essentially our evidence would show that this conduct was continuing at least from the first time the officers went in in May throughout the entire summer.
I think that evidence is admissible for the purposes that I stated earlier, to show that the individuals involved in the sale were aware of the nature and character and content of the material that they were issuing or that they were promoting, and other charges may result from the items that were seized.
In fact, other charges did result from the items that were seized on the 15th of September, when the warrant was executed. 5 There may be additional charges.
(Tr. 145-47.)
B.A.P. claims that the statute which authorized the warrant, Mo.Rev.Stat. § 542.281, is facially unconstitutional on three grounds, and each will be addressed in turn. 6
B.A.P. first argues that the statute is unconstitutional because it fails to distinguish adequately between "mass seizures" and "limited evidentiary seizures." As noted above, the Missouri statute sets out two different procedural paths for the seizure of obscene materials, depending on the purpose of the seizure. Under Mo.Rev.Stat. § 542.281.8, if the warrant is "other than for evidentiary purposes" then the statute requires written notice and an adversarial hearing to determine the issue of obscenity before the judge may issue the warrant. The problem with this scheme, B.A.P. insists, is that there is nothing in the language of the statute itself to prevent an overzealous prosecutor from conducting a mass seizure without providing the required procedural safeguards by simply disguising it as an evidentiary seizure. As B.A.P. correctly points out, the Constitution requires additional procedural safeguards when obscene material is seized as contraband in a forfeiture proceeding, as opposed to when it is seized as evidence of a crime, in this case a misdemeanor violation, promotion of obscenity in the second degree. 7 According to B.A.P., the Prosecuting Attorney's Office and the St. Louis County Police Department essentially conducted a raid on California Erotic Novelties and seized most of its inventory in an attempt to force it out of business. B.A.P. argues that McCulloch's testimony, the fact that the seizure practically depleted the entire inventory of California Erotic Novelties, and the cursory fashion in which the officers determined what items would be seized, all indicate that the seizure was not just to gather evidence, but also to restrain the free flow of presumptively protected material. Furthermore, B.A.P. claims that this...
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