Hanby v. State

• Decision Date: 23 December 1970
• Docket Number: No. 1242,1242
• Citation: 479 P.2d 486
• Parties: Edward HANBY, Petitioner, v. STATE of Alaska, Respondent.
• Court: Alaska Supreme Court

Page 486

479 P.2d 486

Edward HANBY, Petitioner, v. STATE of Alaska, Respondent.

No. 1242.

Supreme Court of Alaska.

Dec. 23, 1970.

Edgar Paul Boyko and Stephen C. Cowper, of Boyko & Walton, Anchorage, for petitioner.

Harold Tobey, Dist. Atty., Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for respondent.

OPINION

Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR, and ERWIN, JJ.

CONNOR, Justice.

The petitioner, Edward Hanby, was charged with five counts of contributing to the delinquency of a minor, a violation of AS 11.40.130(a), a misdemeanor. He moved to suppress certain evidence and to dismiss the indictment, but the trial court denied both motions. He then petitioned this court for review.

Hanby operates the Billiken Drive-In Theater near Anchorage, Alaska. On October 10, 1969, he was exhibiting motion pictures called 'The Pleasure Machines' and 'Love Camp 7.' On that date Trooper Anderson of the Alaska State Troopers charged Hanby with contributing to the delinquency of a minor. ¹ As a result of this charge, a criminal complaint was issued.

Trooper Anderson also executed before a district judge an affidavit for a search warrant. His affidavit states that persons under the age of 18 were present at the theater, and further,

'That this evening at the Billiken Theater * * * are being featured two motion pictures, 'The Pleasure Machines' and 'Love Camp 7', which motion pictures contain scenes which motion lustful conduct and human brutality.

'That because of the nature of the motion pictures and the age of the viewers, arrests of the persons admitting these children will be made this evening on charge (sic) of contributing to the delinquency of a minor.'

The affidavit did not set forth in any greater detail the factual basis for the trooper's belief that the search warrant should issue. The trooper did not view the movies to completion; nor did the judge issuing the warrant herself at any time view any part of them. Before the issuance of the warrant there was no adversary hearing on the legality of the seizure.

Based solely on the affidavit, the district judge issued the search warrant. The warrant named both movies, but erroneously stated that they were 'stolen or embezzled.' ² No other ground or probable cause for its issuance was stated. It permitted the police to search the premises for the films and to seize both of them. The seizure was accomplished after the final scheduled showing of the motion pictures. No adversary hearing was held on the propriety of the seizure until several weeks later.

On October 30, 1969, the grand jury indicted Hanby on five counts of contributing to the delinquency of a minor. The indictment alleged that five minors under eighteen years of age were on the premises. It charged in each count that films 'which depicted brutality and lustful behavior were being presented to public view, such conduct tending to encourage and contribute to the delinquency of the said child.'

On November 7, 1969, Hanby moved to suppress the films as evidence. On November 14, 1969, 35 days after the issuance of the warrant, an adversary hearing was held on the defense's motion to suppress. On November 28, 1969, Hanby moved to dismiss the indictment. A hearing was held on both the motion to suppress and the motion to dismiss on January 9, 1970, at which time both motions were denied. Hanby then petitioned this court for a review of his case.

At no time in the interim have the films been returned to petitioner; throughout the entire period they have remained in the custody of the state.

I

This court has held that review will be granted when the sound policy of permitting most trials to run their course uninterrupted by 'piecemeal' review of litigation is outweighed by the need for more immediate justice. City of Fairbanks v. Schaible, 352 P.2d 129, 130 (Alaska 1960). We must consider in each such petition 'whether the sound policy behind the general rule of requiring appeals to be taken only from final judgments is outweighed by the claim of the individual case that justice demands a present and immediate review of a particular non-appealable order or decision.' Stokes v. Van Seventer, 355 P.2d 594, 595 (Alaska 1960). In City of Fairbanks v. Schaible, supra, 352 P.2d at 131, we noted that in this task we are given broad discretion under Supreme Court Rules 23 ³ and 24. ⁴ For example, on occasion we have treated cases non-appealable for one reason or another, which had been erroneously appealed, as petitions for review in order to prevent hardship and injustice. ⁵ Yet we have granted petitions for review only in a few unusual cases. ⁶ Most petitions for review are denied without opinion. In light of trial court realities, we prefer in most instances to wait until the final judgment before ascertaining the most important issues in the case. We also refrain from prematurely imposing our views upon the parties and trial court, thereby possibly confusing the issues and prejudicing the outcome. Contento v. Alaska State Housing Authority, 398 P.2d 1000 (Alaska 1965). It has, therefore, been our avowed policy to almost always require cases to proceed to final judgment before review may be had in this court as of right. AS 22.05.010; Supreme Court Rule 6; State v. Hillstrand, 352 P.2d 633 (Alaska 1960); City of Fairbanks v. Schaible, supra.

Not only must the case usually pose an important question for us to grant review, that question must demand an immediate answer. ⁷ The conditions of both Supreme Court Rules 23 and 24 must be met. City of Fairbanks v. Schaible, supra; State of Alaska v. Hillstrand, supra; Levi v. Sexton, 439 P.2d 423 (Alaska 1968).

We find this case ripe for immediate review. It presents several important issues concerning the fundamental right of free expression. ⁸ Much time has already been lost. The films have been impounded, awaiting a ruling by this court. Although at the time of their seizure, both movies had completed their run in the Anchorage area, it is likely they were scheduled to be shown elsewhere in the near future. As a result of their long impoundment, it is probable that the right of the producers and exhibitors to show the motion pictures elsewhere has been significantly affected. The right of the public to view these films has been similarly denied. Moreover, as petitioner argues,

'In the instant case, distributors and exhibitors of films, books and other forms of expression must anxiously await the outcome of this litigation to determine whether they may be prosecuted under the statute relied on by the state. It is, therefore, vital to have the questions decided as quickly as possible, as the right of free speech and expression hangs in the balance.'

In such a case as this, when prosecution impinging on First Amendment rights is attempted under a statute which is claimed to be clearly inapplicable, serious constitutional difficulties appear. At some relatively early point the defendant should be given a speedy determination. ⁹ If he must wait weeks, months or even a year for an adjudication or review on whether the statute is inapplicable, a further problem can arise. If he is threatened again with similar unconstitutional action, it may have an inhibitory effect on the exercise of the right to free expression. Others similarly situated may also be restrained from exercising their rights.

Due process requires a prompt adjudication of First Amendment rights. Prolonged threat of prosecution under a statute, asserted to be clearly inapplicable, raises serious problems under the due process clause. The mere threat of prosecution can indeed become a stifling prior restraint on free expression. ¹⁰ Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). In such a case both the prosecution and the court have a duty to insure that the defendant's rights are not violated. Though we need not decide whether Hanby's rights to a speedy determination of the legality of prosecution under AS 11.40.130(a) were violated here, we must act now and not after final judgment.

Extraordinary legal remedies to protect First Amendment rights are frequently employed and are constitutionally mandated. Courts must be ever vigilant to protect the rights of those expounding unpopular views or distributing material thought to be offensive by certain segments of the community. It is these views and these materials that the First Amendment is most often called upon to protect. In such cases popular disapproval backed by even the threat of official sanction may stifle free expression contemporaneously with the utterance itself. The First Amendment will not permit the majority to silence the minority for reasons or by methods which are constitutionally infirm. In the case at bar, the chilling effect of such a prosecution is not hard to imagine. ¹¹ Here, if anywhere, justice delayed is truly justice denied. ¹²

Because of the threats posed to freedom of expression, the importance of the issues presented, the conclusive disposition this review will have upon this case, the certainty of the law on the questions presented, and the lack of issues of fact relevant to the questions of law presented for review, we grant the petition for review under Supreme Court Rules 23(e) and 24(1).

II

We now take up the question of whether the search of the Billiken Drive-In Theater and the seizure of the films were unconstitutional.

The warrant was issued solely on the basis of an affidavit. The affidavit itself was based on the observations of a State Trooper who admitted that he only viewed portions of the two motion pictures. As a result of his observations, he concluded that the films constituted essential evidence of the commission of a crime.

The state argues that the warrant should not be tested by the standards applying in obscenity cases, because here a different offense, contributing to the delinquency of a minor, is charged. What is overlooked is that the...