Kervin v. State

• Decision Date: 27 September 1984
• Docket Number: No. 68326,68326
• Parties: KERVIN v. The STATE.
• Court: Georgia Court of Appeals

Page 643

323 S.E.2d 643

172 Ga.App. 478

KERVIN v. The STATE.

No. 68326.

Court of Appeals of Georgia.

Sept. 27, 1984.

Rehearing Denied Oct. 30, 1984.

R. David Botts, Atlanta, for appellant.

James L. Webb, Sol., Charles S. Hunter, Asst. Sol., for appellee.

CARLEY, Judge.

Appellant appeals from his conviction of possession of obscene material with the intent to disseminate same, in violation of OCGA § 16-12-80.

1. Appellant enumerates as error the general grounds. The evidence adduced at trial showed the following: An undercover officer went to a certain adult bookstore and purchased a copy of a magazine identified as "Sex Sisters, Vol. 3/No. 2." The officer took the magazine to a judge, who made an initial determination of probable obscenity and issued a "John Doe" arrest warrant for the vendor of the magazine. The officer returned to the bookstore and executed the warrant by arresting the employee who had sold him the magazine. The officer and his partner then asked the employee whether there was anyone who could lock up the store, or whether he could call anyone to do so, since the employee would be taken to jail. At that point, appellant informed the officers that he would "take over." The officers asked appellant whether he worked at the bookstore, and he replied that he did. These statements gave the officers probable cause to believe that appellant intended to disseminate the items offered for sale in the store. State v. Handspike, 240 Ga. 176, 240 S.E.2d 1 (1977); King v. State, 161 Ga.App. 382, 288 S.E.2d 644 (1982). Appellant was then placed under arrest, and one of the officers removed from a display rack another copy of "Sex Sisters, Vol. 3/No. 2." This second copy of the magazine formed the basis of the charge against appellant.

In addition to the evidence that appellant offered to "take over" the bookstore, there was also evidence that appellant was employed by the store in a supervisory capacity. A former clerk testified that appellant had instructed him to work in the store, and that appellant would unlock the front door of the store, open the safe, and supply the clerk with cash at the beginning of his shift. The clerk considered appellant to be his boss.

The foregoing evidence was sufficient to establish that appellant was an employee of the adult bookstore, and that he possessed a copy of "Sex Sisters, Vol. 3/No. 2" with the intent to disseminate it. From the evidence presented, any rational trier of fact could have determined beyond a reasonable doubt that appellant was guilty of the offense charged. See Spry v. State, 156 Ga.App. 74, 274 S.E.2d 2 (1980); Allen v. State, 144 Ga.App. 233, 240 S.E.2d 754 (1977), cert. denied 439 U.S. 899, 99 S.Ct. 264, 58 L.Ed.2d 247 (1978).

2. At the close of the State's evidence, appellant moved for a directed verdict of acquittal on the ground that the State had failed to produce sufficient evidence of the commercial exploitation of erotica. The denial of this motion is enumerated as error.

There was testimony that the outside of the store bore signs clearly identifying it as an adult bookstore which showed movies. An admission fee was charged for the pornographic section of the store wherein hundreds of sexually explicit magazines were displayed in open racks and offered for sale. This evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that there was commercial exploitation of erotica in the instant case. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The motion for directed verdict was properly denied. Maddox v. State, 170 Ga.App. 498, 317 S.E.2d 617 (1984).

3. Appellant also enumerates as error the failure of the trial court to instruct the jury as to the definition of "possession." No request for such a charge was made.

"This court has held that ' "possession" ... is a word well known and familiar to all laymen, and is in general use by them; they understand its meaning. It is so obvious [that] we cannot imagine the jury having any difficulty in applying it, or in having any doubt as to its meaning.' [Cit.] 'In the absence of request, the court's failure to define the meaning of terms used in the charge is not ordinarily ground for reversal.' [Cit.]" Shumake v. State, 159 Ga.App. 141, 143, 282 S.E.2d 756 (1981).

4. The remaining enumeration of error concerns the denial of appellant's motion to suppress the physical evidence of the magazine.

As noted in Division 1, supra, the second copy of "Sex Sisters, Vol. 3/No. 2" was seized without a warrant. Appellant contends that this seizure was in violation of the protection afforded written publications by the First Amendment. "Roaden [v. Kentucky, 413 U.S. 496 (93 SC 2796, 37 LE2d 757) (1973) ] clearly holds that a police officer may not arrest [or seize] without a warrant on a charge of possessing or [disseminating] pornographic material in a place of public accommodation ... under circumstances where he substitutes his judgment as to the obscenity of the material for that of a neutral and detached magistrate .... The clear purport of this decision is that the sometimes sophisticated value judgments necessary to establish guilt or innocence under obscenity laws must, to preserve First Amendment rights, be passed upon by a judicial officer rather than a member of the police department. [Cits.]" Hall v. State, 139 Ga.App. 488, 489, 229 S.E.2d 12 (1976). See also State v. Smalley, 138 Ga.App. 747, 227 S.E.2d 488 (1976). "The Constitution at a minimum apparently requires the imposition of a neutral, detached magistrate in the procedure to make an independent judicial determination of probable cause prior to issuing an arrest warrant or some other warrant authorizing the seizure of allegedly obscene material to be used as evidence. [Cit.]" Penthouse Intl., Ltd. v. McAuliffe, 610 F.2d 1353, 1362 (1980), cert. dismissed 447 U.S. 931, 100 S.Ct. 3031, 65 L.Ed.2d 1131 (1980). Once such a judicial determination has been made, the material is no longer presumptively protected by the First Amendment, and it is subject to seizure under the rules applicable to seizures of other types of contraband.

The instant case does not present an instance of constitutionally forbidden prior restraint, because there had been a previous judicial determination of probable obscenity with regard to another copy of the same magazine which was seized in conjunction with appellant's arrest. Although the officer did not inspect each page of the second copy of "Sex Sisters" to ascertain that it was precisely the same as each page of the first copy, he did examine the front cover of the second magazine to determine that it was the same as the one which had previously been judicially scrutinized. Since the covers of the two publications were identical, and both were copies of "Sex Sisters, Vol. 3/No. 2," a reasonable person would have probable cause to believe that the second copy was the same as the first, and that it had already been the subject of an initial adjudication of probable obscenity. Thus, unlike the situations in Hall and Smalley, supra, the officer in the case at bar did not substitute his assessment of obscenity for that of a neutral and detached magistrate.

Under these particular factual circumstances, where police officers went to a bookstore and purchased a magazine, presented the magazine to a neutral and detached magistrate who determined that it was probably obscene, then returned to the same store on the same day and seized another copy of the same magazine, we hold that the warrantless seizure did not violate appellant's constitutional rights. There was probable cause to arrest appellant for displaying a copy of the same magazine which had served as the basis for an arrest warrant for distributing obscene materials. The second copy of "Sex Sisters, Vol. 3/No. 2" was legally confiscated as evidence of a violation of law committed in the presence of the officer. The seizure was properly incident to the lawful arrest of appellant, and it was not error to deny the motion to suppress.

Judgment affirmed.

McMURRAY, C.J., BANKE, P.J., BIRDSONG, SOGNIER and BENHAM, JJ., concur.

DEEN, P.J., concurs specially.

QUILLIAN, P.J., and POPE, J., dissent.

DEEN, Presiding Judge, concurring specially.

While concurring in the judgment of the majority opinion, three points should be made.

1. The dissenting opinion of Presiding Judge Quillian is a scholarly summary of the law in the area of the First, Fourth, and Fourteenth Amendments of the United States Constitution. I question the applicability of Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), however, as in that case the sheriff viewed the film, whereas in the instant case a neutral judge made the initial determination of probable obscenity. The officer was at a place where he had a right to be when he saw another copy of the same magazine which had initially been adjudicated obscene. He arrested the appellant, as he probably could have arrested any other employee in the store who had custody and possession of this particular magazine for sale. Compare recent trends of the United States Supreme Court in related areas liberalizing good faith judgments of officers involving technical errors of different kinds. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984); Segura v. United States, 468 U.S. 796, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).

2. The recent whole court case of Maddox v. State, 170 Ga.App. 498, 317 S.E.2d 617 (1984) cited Lee v. State, 247 Ga. 411, 412(6), 276 S.E.2d 590 (1981) as to the requirements when considering motions for directed verdicts of acquittal. The following standard was set forth: "[T]here was ample evidence sufficient to enable any rational trier of facts to find the existence of the offenses charged beyond a reasonable doubt. Jackson...