Felton v. City of Pensacola

• Decision Date: 06 July 1967
• Docket Number: No. H--472,H--472
• Citation: 200 So.2d 842
• Parties: Roy Michael FELTON, Ralph Franklin Moore, James Hollingshead, Joseph W. Spirakis and Ralph James Armantrout, Appellants. v. The CITY OF PENSACOLA, Appellee.
• Court: Florida District Court of Appeals

Page 842

200 So.2d 842

Roy Michael FELTON, Ralph Franklin Moore, James Hollingshead, Joseph W. Spirakis and Ralph James Armantrout, Appellants. v. The CITY OF PENSACOLA, Appellee.

No. H--472.

District Court of Appeal of Florida, First District.

July 6, 1967.

Rehearing Denied July 27, 1967.

Levin, Askew, Warfield, Levin & Graff, Pensacola, and Haas, Holland, Freeman, Levison & Gibert, Atlanta, Ga., for appellants.

William C. Jones, Pensacola, for appellee.

CARROLL, DONALD K., J.

The appellants have appealed from an order entered by the Circuit Court for Escambia County, affirming a judgment of the Municipal Court of the City of Pensacola, convicting them of violating a municipal ordinance declaring unlawful the exposure, circulation, sale, or distribution of obscene printed materials.

While the parties hereto have designated and treated these proceedings as an appeal, the proceedings technically should be in certiorari since we are herein asked to review an order entered by a Circuit Court sitting in the exercise of its appellate jurisdiction. See Florida Civil Practice After Trial, Section 7.38, page 430. Pursuant ot the provisions of Sec. 59.45, Florida Statutes, F.S.A., however, we will regard and act upon the notice of appeal and the record herein as a petition for certiorari duly presented to this court. We will, therefore, reach our conclusions in accordance with the principles applicable to proceedings in certiorari. In the opinion below we shall refer to the petitioners for writ of certiorari as the appellants.

The printed materials involved in this case are nudist magazines which were seized at the appellants' newsstands by a city police officer. The first question presented for our determination in this appeal is whether the said seizure was conducted in accordance with constitutional guarantees (and we hold here that the seizure was not so conducted) and, if not so conducted, whether the appellants at their trial preserved or waived their right to object to the admission into evidence of the magazines so seized. Since we hold herein that the appellants waived their said right, we must also answer the ultimate question in this appeal--were those nudist magazines in fact legally obscene under the mentioned ordinance of the City of Pensacola?

The transcript of the testimony taken at the trial in the Municipal Court establishes that the nudist magazines were seized by one Robert Godwin, a city police officer. He did not himself, however, arrest any of the defendants. The arrests were later made by the chief of police. It is evident from the record that no search warrant has ever been issued against, or served upon, the defendants, authorizing the seizure of the said magazines.

The testimony of Godwin was stipulated to be applicable as to all of the defendants. Asked at the trial by the defense attorney as to what test he used to determine whether or not a publication violated the law, Godwin testified:

'I used no test, sir; I just used my own good judgment that nude men and women in a magazine together would be a violation of the law.'

Immediately thereafter he also testified that that was the only test he used. Earlier in his cross-examination by the defense counsel, Godwin was asked as to what criteria he used to determine whether or not the particular publications violated the law. The officer responded:

'I was told by the Chief of Police to go up there and if they had this sort of literature up there to purchase or take some of this literature.'

The importance of this issue raised in the appeal concerning the legality of the seizure procedure lies in the fact that the resolution of this issue requires us to determine whether the police officer's actions violated the guarantee of the freedom of speech and the press in the First Amendment to the United States Constitution and the guarantee of due process of law in the Fourteenth Amendment in the sensitive and controversial area of obscenity in printed materials. In considering such an issue, of course, the decisions of the United States Supreme Court are controlling.

In Marcus v. Search Warrants of Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), a Missouri court had issued search and seizure warrants against a wholesale distributor of magazines, newspapers, and books, and against operators of retail newsstands, under Missouri procedures authorizing the search for and seizure of allegedly obscene publications preliminary to their destruction if found by a court to be obscene. The distributor and newsstand operators moved to quash the warrants and suppress as evidence the property seized pursuant thereto, on the ground, inter alia, that the Missouri procedures were invalid under the guarantee of free speech assured against state abridgment by the Fourteenth Amendment. The Missouri court denied the motions and found the items seized to be obscene. The Supreme Court of Missouri sustained the validity of the procedures. On appeal to the United States Supreme Court, the latter reversed the judgment, ruling that the Missouri procedures lacked the safeguards which due process demands to assure nonobscene material the constitutional protection to which it is entitled. Before reaching this ruling the U.S. Supreme Court first recognized the doctrine that 'a State's power to suppress obscenity is limited by the constitutional protections for free expression * * *' and 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.'

As in the case at bar, the printed materials in the Marcus case were seized after a police officer determined them to be obscene. Concerning the constitutionality of this procedure, the United States Supreme Court held:

'We believe that Missouri's procedures as applied in this case lacked the safeguards which due process demands to assure nonobscene material the constitutional protection to which it is entitled. Putting to one side the fact that no opportunity was afforded the appellants to elicit and contest the reasons for the officer's belief, or otherwise to argue against the propriety of the seizure to the issuing judge, still the warrants issued on the strength of the conclusory assertions of a single police officer, without any scrutiny by the judge of any materials considered by the complaint to be obscene. The warrants 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 involved the selection of such magazines as in his view constituted 'obscene * * * publications.' So far as appears from the record, none of the officers except Lieutenant Coughlin had previously examined any of the publications which were subsequently seized. It is plain that in many instances, if not in all, each officer actually made ad hoc decisions on the spot and, gauged by the number of publications seized and the time spent in executing the warrants, each decision was made with little opportunity for reflection and deliberation. As to publications seized because they appeared on the Lieutenant's list, we know nothing of the basis for the original judgment that they were obscene. 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. See generally 1 Chafee, Government and Mass Communications, pp. 200--218. In consequence there were suppressed and withheld from the market for over two months 180 publications not found obscene. The fact that 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 than were here operative. 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.'

In the recent case of A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed. 809 (1965), the Supreme Court thus summarized its holding in the foregoing Marcus case:

'In Marcus the warrant gave the police virtually unlimited authority to seize any publications which they considered to be obscene, and was issued on a verified complaint lacking any specific description of the publications to be seized, and without prior submission of any publications whatever to the judge issuing the warrant. We reversed a judgment directing the destruction of the copies of 100 publications held to be obscene, holding that, even assuming that they were obscene, the procedures leading to their condemnation were constitutionally deficient for lack of safeguards to prevent suppression of nonobscene publications protected by the Constitution.'

In our opinion, the seizure of the nudist magazines by the police officer in the case at bar falls squarely within the ban of the...