Gibbs v. State

• Decision Date: 04 February 1974
• Docket Number: No. 73--159,73--159
• Citation: 255 Ark. 997,504 S.W.2d 719
• Parties: Jerry Leon GIBBS, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 719

504 S.W.2d 719

255 Ark. 997

Jerry Leon GIBBS, Appellant, v. STATE of Arkansas, Appellee.

No. 73--159.

Supreme Court of Arkansas.

Feb. 4, 1974.

Robert D. Ridgeway, Hot Springs, for appellant.

Jim Guy Tucker, Atty. Gen. by Phillip M. Wilson, Asst. Atty. Gen., Little Rock, for appellee.

Lee A. Munson, Pros. Atty., by John Wesley Hall, Jr., Deputy Pros. Atty., amicus curiae.

FOGLEMAN, Justice.

This appeal results from the conviction of Jerry Leon Gibbs for violation of Ark. Stat.Ann. § 41--2729 (Supp.1973), which prohibits the exhibition or possession of any obscene film. After he was found guilty by the Municipal Court of the City of Hot Springs, he appealed to the Circuit Court of Garland County, where he was again found guilty. He asserts five points for reversal. We find reversible error in the denial of appellant's motion to suppress film seized by a police officer. We will first treat that ground and later discuss other points which would probably arise on a retrial.

Appellant moved to 'quash' six Peepshow Machines, and the film contained therein, various photographs, two rolls of 8 mm. film and five paper-bound books. He alleged that this property was taken by police officers acting without a search warrant or other court order for its seizure.

On October 18, 1971, Lieutenant Norman Hall of the Hot Springs Police Department noticed signs on the window at Paris Book Store, 258 Central Avenue, advertising 'nude movies.' He and Sergeant Griffith, another police officer, entered the building and went to a rear room, where they found six or seven machines called 'Peep Show Machines' set up. Neither officer had a search warrant, and none had been issued. Hall had gone to this place to investigate upon advice of the Mayor. He observed the films displayed by these machines. It was stipulated those which they saw depicted simulated sex acts; no penetration or actual intercourse was shown. The machines were coin operated and Hall viewed the films as any patron of the establishment would, i.e., by placing the required coins into the machine. The officers were directed to the room where the machines were located by Gibbs when Hall asked him where the nude movies were. After viewing the film, he arrested Gibbs, who was then the only person in the store, and seized the machines and the films in them. There was no adversary hearing as to the obscenity of the film before the seizure or before Gibbs' trial. The record does not disclose whether the film was shown at his municipal court trial.

A similar question was presented in Bullard v. State, 252 Ark. 806, 481 S.W.2d 363. We then recognized, upon the authority of Lee Art Theater, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968); A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), the establishment by the Supreme Court of the United States of a rule that seizure of an allegedly obscene film by a police officer without a prior adversary hearing at which the obscene quality of the film is independently determined by a judicial officer is unreasonable. We also pointed out that, in this respect, the court had found a difference between the seizure of ordinary contraband and matter that, if not obscene, is subject to First Amendment protection. In Bullard, we held the court erred in failing to suppress the seizure of film by a police officer who had viewed it because there was no prior adversary hearing. Nothing has changed the rule applied in Bullard. It is true that the United States Supreme Court has stated, in Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), and Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2769, 37 L.Ed.2d 757 (1973), that the right to a prior adversary hearing as to obscenity of material arguably protected by the First Amendment is not absolute in all cases, particularly where there is a seizure pursuant to a warrant for preservation of the material as evidence. It is clear, however from these cases and those upon which we relied in Bullard, that there must at least be a determination of probable cause by a neutral magistrate before seizure of allegedly obscene material followed by a prompt post-seizure judicial determination of the obscenity issue at the request of an interested party. It also appears that under these authorities, the seizure of a film must not prevent continued showing of a film.

In Roaden, virtually indistinguishable upon the facts from the case before us, it was held that a seizure such as this is plainly a form of prior restraint and unreasonable under Fourth Amendment standards. The court recognized, however, that there might be exigent circumstances requiring immediate police action to prevent destruction of evidence which would make action without prior judicial evaluation reasonable, but found no such circumstances to exist there. It is not suggested that they existed here.

The state's contention that there was consent, express or implied, to the search through Gibbs' directing Hall and Griffith to the room where the nude movies were being shown merits little attention. It overlooks the lack of evidentiary support, because there is nothing to show that Gibbs even suspected that Hall and Griffith were police officers. It also ignores the fact that it is the seizure, not the search, that is attacked as unreasonable. The state's assertion that the material, since it was actually obscene, was not protected by the First Amendment is likewise without merit. The full impact of the rule declared by decisions of the United States Supreme Court cited above, and those relied upon in Bullard, quite clearly applies to material which would be subject to First Amendment protection, except for its obscenity.

The brief of amicus curiae on this point is based upon an argument that unlawfulness of the search and seizure does not require suppression of the film because the search and seizure did not lead to the discovery of the crime and because the primary right involved was First Amendment right of access rather than Fourth Amendment immunity from search and seizure. A short answer is that such a position is clearly contrary to the result in Roaden, where the reversal was based solely upon the admission of the film in evidence. Cases cited by amicus in support of this argument are pre-Roaden decisions.

Amicus also proposes we should not apply the exclusionary rule because it is under severe attack to which it may well succumb. Presently, it is sufficient to say that this court recognized the desirability of the rule before it was imposed upon state courts by the United States Supreme Court. See Clubb v. State, 230 Ark. 688, 326 S.W.2d 816; Burke v. State, 235 Ark. 882, 362 S.W.2d 695; Mann v. City of Heber Springs, 239 Ark. 969, 395 S.W.2d 557, 559 (Johnson, J., concurring). The propriety of the exclusionary rule, in general, has not yet been subjected to frontal attack in this court. Furthermore, the mere fact that the United States Supreme Court has accepted cases for review in which an assault on the exclusionary rule had been mounted is inadequate basis for a clairvoyant prediction that the rule is in the throes of death. There could be no clearer demonstration of our inability to do so, or of the foolhardiness of indulging in such speculation, than the declination by the court of an invitation to abrogate the rule in two of those cases. See United States v. Robinson, --- U.S. ---, 94 S.Ct. 467, 38 L.Ed.2d 427, and Gustafson v. Florida, --- U.S. ---, 94 S.Ct. 488, 38 L.Ed.2d 456 (both decided December 11, 1973, subsequent to the original submission of this case). Not only was there no consideration of the advisability of the abandonment of the rule in these cases, it is treated as viable in Robinson. It seems that the disposition of both cases would have been simpler if the court had chosen to recede from its exclusionary rule. In another such case, United States v. Calandra, --- U.S. ---, 94 S.Ct. 613, 38 L.Ed.2d 561, the court on January 8, this year, simply refused to extend the exclusionary rule to grand jury proceedings upon the premises that a grand jury, unrestrained by evidentiary rules governing criminal trials, may even consider incompetent evidence and that one has standing to invoke the rule only when evidence illegally obtained, or the fruits thereof, is offered to incriminate the victim of the search. Although the court there deliberately avoided discussion of the rule's efficacy in criminal trials, this case, too, could easily have afforded a vehicle for abandonment of the rule. Certainly, this trio, all under submission at the same time, and argued within a three-day period, would have afforded an ideal vehicle for abandonment of the rule, if such a step is imminent.

Reversal on this point, however, does not require dismissal because of the availability of such procedures as are suggested in Bullard.

Appellant's second point for reversal is a contention that the trial court erred by taking judicial notice of contemporary community standards. We think appellant misconstrues the action of the trial court. His argument is based upon the fact that there was no evidence in the record as to these standards, except for the testimony of a police officer who based his opinion upon his own personal feelings and upon the fact that people in the community 'were hot about the bookstores' at the time. The circuit judge, who sat as trier of the facts, after waiver of jury trial, in his final opinion, stated his familiarity with community standards in 41 of the 50 states and found the film to go beyond contemporary community standards of 'this community, this state and this country.' Among other statements of the trial judge in delivering his opinion are these:

It is inconceivable that the community standards of any average community in this or any...