Com. v. Jacobs

• Decision Date: 02 July 1963
• Parties: COMMONWEALTH v. Jack JACOBS (three cases). COMMONWEALTH v. INTERSTATE NEWSDEALERS SUPPLY, INC. (three cases). *
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 873

191 N.E.2d 873

346 Mass. 300

COMMONWEALTH v. Jack JACOBS (three cases).

COMMONWEALTH v. INTERSTATE NEWSDEALERS SUPPLY, INC. (three cases).

^*

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 3, 1962.

Decided July 2, 1963.

Joseph R. Nolan, Asst. Dist. Atty. (Newman A. Flanagan, Asst. Dist. Atty., with him), for the Commonwealth.

William P. Homans, Jr., Boston (Harold Katz and Sumner Z. Kaplan, Boston, with him), for defendants.

Reuben Goodman, James M. Harkless, and Danied D. Levenson, Boston, for Civil Liberties Union of Massachusetts, amici curiae.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

CUTTER, Justice.

The defendants were indicted for violation of G.L. c. 272, § 28A (as amended through St.1959, c. 492, § 2), ¹ and § 28B (as amended through St.1960, c. 311). ² Jacobs was the active manager of Interstate Newsdealers Supply, Inc. (Interstate).

Each count under § 28A charged the defendant with possession (Nos. 198, 200) for purposes of sale of a particular pamphlet, or with importation (Nos. 199, 201) of a particular pamphlet. Each count under § 28B charged that the defendant on a stated date in October or November, 1960, 'being a wholesale distributor, did * * * deliver to one * * * Baker, a retail storekeeper' a particular pamphlet, magazine, or printed item ³ 'knowing it to be obscene * * * the * * * storekeeper not having previously ordered in writing such pamphlet, magazine and printed material, specifying the title and quantity of such publication desired.'

The indictments were returned on January 6, 1961. Trial took place on May 24 to May 31, 1961, ⁴ under G.L. c. 278, §§ 33A-33G, inclusive, as amended. There were verdicts of guilty against each defendant on each count. Each defendant appealed and filed assignments of error.

The first assignment of error in each case relates to the validity of a general search warrant. It is based upon the denial of the defendants' motions, filed in advance of trial in cases Nos. 199 and 200 (see fn. 8, infra), to quash the indictments and to suppress the evidence obtained by the use of the search warrant. ⁵ This warrant, a copy of which was attached to each motion, was expressed in terms abbreviating the general language of G.L. c. 276, § 1, Eighth (as amended through St.1934, c. 303, § 2). ⁶ The grounds of the motions were that 'the warrant * * * was not issued upon probable cause supported by oath * * *, the basis for the oath of belief is not stated, and the warrant * * * is too broad and fails to describe particularly the things to be searched for and seized.' See Fourth and Fourteenth Amendments of the Constitution of the United States, and Constitution of Massachusetts, Part I, Declaration of Rights, art. 14. ⁷

These motions plainly were filed in 'optimistic anticipation' (see Dirring, petitioner, 344 Mass. 522, 524, 183 N.E.2d 300) of the decisions of the Supreme Court of the United States in various cases, not then decided (see fn. 4, supra), especially the Marcus case, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127, and the Mapp case, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. See Commonwealth v. Spofford, 343 Mass. 703, 706-708, 180 N.E.2d 673. The judge who heard the motions was not the judge who later presided at the trial of the indictments. Our then existing rule (see e. g. Commonwealth v. Wilkins, 243 Mass. 356, 138 N.E. 11) applicable to criminal proceedings would not then have supported the supression or exclusion from evidence of the seized material. The defendants did all that they could reasonably have been required to do, in the then state of the Massachusetts law, to save their rights against the possibility of the later Supreme Court decisions.

The motions, although in name motions to quash, were in substance (see Commonwealth v. Geagan, 339 Mass. 487, 495, 159 N.E.2d 870) motions to suppress evidence seized under the general warrant (see fn. 6, supra). Viewed as motions to quash the indictments, the motions were properly denied. Commonwealth v. Geagan, 339 Mass. 487, 499, 159 N.E.2d 870. See Costello v. United States, 350 U.S. 359, 361-364, 76 S.Ct. 406, 100 L.Ed. 397; Lawn v. United States, 355 U.S. 339, 348-350, 78 S.Ct. 311, 2 L.Ed.2d 321; Centracchio v. Garrity, 198 F.2d 382, 387-389 (1st Cir.); 8 Wigmore, Evidence (McNaughton rev.) § 2184a, p. 40. Viewed as motions to suppress seized documents, we must consider them in the light of the Marcus case, even though the motions were heard and the indictments were tried before that decision. Commonwealth v. Spofford, 343 Mass. 703, 706-707, 180 N.E.2d 673.

Each motion recited that Interstate occupied premises at 1080 Hyde Park Avenue, Boston, and that on December 2, 1960, certain books, pictures, magazines, articles, and similar materials were seized and taken from Interstate's premises upon the warrant, a copy of which was attached to the motions. No evidence was introduced at the hearing of the motions. Two arguments were made, viz., (1) 'that the warrant was improper, that the statute under which the warrant issued is unconstitutional, and, consequently, the search and seizure * * * is * * * illegal,' and (2) that the judge 'should * * * determine that the evidence * * * illegally seized should be quashed and not used as evidence in a criminal proceeding.' These arguments were developed orally in considerable detail. The motions were denied before the trial commenced. ⁸

The Marcus case dealt with a Missouri statute which permitted a search warrant ⁹ to be issued upon sworn, written complaint if the issuing officer 'shall be satisfied that there is reasonable ground' therefor. If a judge, after a hearing, determines that material taken is obscene, such material is to be destroyed after its usefulness as 'evidence in any criminal prosecution' has ended. In circumstances in many respects similar to those in the present case, the Kansas City police seized, upon a general search warrant, some 11,000 copies of 280 publications, from a wholesaler and from news stands (367 U.S. p. 723, 81 S.Ct. p. 1711, 6 L.Ed.2d 1127). Motions were filed 'to quash the search warrants and to suppress as evidence the property seized' (367 U.S. p. 723, 81 S.Ct. p. 1712, 6 L.Ed.2d 1127). The judge 'found that 100 of the * * * items were obscene' (367 U.S. p. 724, 81 S.Ct. p. 1712, 6 L.Ed.2d 1127) and ordered them destroyed. The Missouri Supreme Court sustained this action. In the Supreme Court of the United States Mr. Justice Brennan spoke for a court unanimous in striking down the Missouri procedures. Mr. Justice Black and Mr. Justice Douglas (367 U.S. at pp. 738-739, 81 S.Ct. at p. 1720, 6 L.Ed.2d 1127) in a separate opinion relied primarily upon the fact that the 'warrant used * * * made no attempt specifically to describe the 'things to be seized,' as the Fourth Amendment requires' and expressed the view that the 'Fourteenth Amendment makes the Fourth Amendment applicable to the States to the full extent of its terms.' See Ker v. California, 372 U.S. ----, 83 S.Ct. 1623. ^a The principal opinion referred in more general terms to a number of aspects of the Missouri procedures. It pointed out (367 U.S. pp. 731-732, 81 S.Ct. p. 1716, 6 L.Ed.2d 1127) that 'the warrants [had] issued on the strength of the conclusory assertions of a single police officer, without any scrutiny by the judge of any materials.' The warrants (367 U.S. pp. 732-733, 81 S.Ct. p. 1716, 6 L.Ed.2d 1127) 'gave the broadest discretion to the executing officers; they merely repeated the language of the statute and the complaints, specified no publications, and left to the individual judgment of each of the many police officers * * * the selection of such magazines as in his view constituted 'obscene * * * publications'' (emphasis supplied). There was slight 'realistic expectation that the obscene might to accurately separated from the constitutionally protected. * * * [The officers] were provided with no guide to the exercise of informed discretion, because there was no step * * * before seizure designed to focus searchingly on the question of obscenity. * * * [T]hat only one-third of the publications seized were finally condemned strengthens the conclusion that discretion to seize allegedly obscene materials cannot be confided to law enforcement officials without greater safeguards * * *. Procedures which sweep so broadly and with so little discrimination are obviously deficient in techniques required by the Due Process Clause of the Fourteenth Amendment to prevent erosion of the constitutional guarantees.' ¹⁰

The Marcus case was a step in a proceeding for condemning objectionable material (in some respects like the type of forfeiture action permitted by G.L. c. 276, § 3 [as amended through St.1957, c. 660, § 3] and § 4), whereas the present case is a criminal prosecution, growing out of a warrant which might equally well have led to forfeiture action, as, indeed, the Marcus warrant might have led to criminal proceedings. The practical effect of the general warrant in both situations was the same and there was in each situation 'no step * * * before seizure designed to focus * * * on the question of obscenity' (367 U.S. at 732, 81 S.Ct. at 1716, 6 L.Ed.2d 1127). See Mr. Justice Harlan, dissenting, Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 80, 83 S.Ct. 631, 9 L.Ed.2d 584. Cf. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 441-444, 77 S.Ct. 1325, 1 L.Ed.2d 1469; Times Film Corp. v. Chicago, 365 U.S. 43, 49-50, 81 S.Ct. 391, 5 L.Ed.2d 403. The exhibition of four items to the clerk did not lead to any adequate definition in the warrant of what might be seized.

Although the principal opinion in the Marcus case discusses the inadequacy of several aspects of the Missouri procedures as applied in that case, we think that the basic ground of decision was that stated 367 U.S. at p. 732, 81 S.Ct. at p. 1716, 6 L.Ed.2d 1127 (already quoted) dealing with (a) the ...