People v. Eagle Books, Inc.

• Decision Date: 15 October 1992
• Docket Number: No. 71350,71350
• Citation: People v. Eagle Books, Inc., 602 N.E.2d 798, 151 Ill.2d 235, 176 Ill.Dec. 852 (Ill. 1992)
• Parties: , 176 Ill.Dec. 852 The PEOPLE of the State of Illinois, Appellant, v. EAGLE BOOKS, INC., d/b/a Book Mart II, Appellee.
• Court: Illinois Supreme Court

Page 798

602 N.E.2d 798

151 Ill.2d 235, 176 Ill.Dec. 852

The PEOPLE of the State of Illinois, Appellant, v. EAGLE BOOKS, INC., d/b/a Book Mart II, Appellee.

No. 71350.

Supreme Court of Illinois.

Oct. 15, 1992.

Neil F. Hartigan and Roland W. Burris, Attys. Gen., Springfield, and Paul A. Logli, State's Atty., Rockford, (Kenneth R. Boyle, William L. Browers and Marshall M. Stevens, of the Office of State's Atty. Appellate Prosecutor, Elgin, of counsel), for the People.

Glenn A. Stanko, Reno, O'Byrne & Kepley, P.C., Champaign, (Daniel J. Cain, of Sreenan & Cain, P.C., of Rockford, of counsel), for appellee.

Justice CLARK delivered the opinion of the court:

On May 27, 1987, defendant, Eagle Books, Inc., d/b/a Book Mart II, was charged by criminal complaint with 144 counts of obscenity, a Class A misdemeanor. Each count alleged that defendant, "with knowledge of the nature or content [of the materials] or recklessly failing to exercise reasonable inspection which would have disclosed the nature of the content thereof, provided, offered for sale or otherwise made available an obscene magazine" on May 7, 1987.

On October 16, 1987, defendant filed a pretrial motion to dismiss, asserting that the Illinois obscenity statute (Ill.Rev.Stat.1987, ch. 38, par. 11-20 et seq.) violated its rights guaranteed by both the Federal and State Constitutions. Defendant alleged, inter alia, that section 11-20(f)(2) of the obscenity statute (Ill.Rev.Stat.1987, ch. 38, par. 11-20(f)(2)), relating to affirmative defenses, was vague. Defendant also filed a motion to quash the search warrant, suppress items seized, and order return of "all items received."

A hearing was held on defendant's motion to quash on March 17, 1989. Seven police officers were called by defendant during the hearing on the motion, which related to a search and seizure operation at an adult bookstore located at 623 Seventh Street, Rockford, Illinois. During that testimony, it was revealed that the bookstore, its patrons, and the immediate vicinity had been under video surveillance by the Rockford police department for approximately two weeks prior to May 7, 1987. Pornography and prostitution were advanced as reasons for the surveillance.

Detective Dale Murphy testified that on May 6, 1987, he was directed by the Rockford chief of police to go to the bookstore to purchase a couple of magazines. He had been instructed to look for magazines containing material with "penetration clearly visible," which was the standard given to him by his boss, Lieutenant Rich Galvanoni, to be used in his selection process. Murphy was in the store approximately 15 to 20 minutes and selected two magazines. He could not recall whether he looked through other magazines and, if so, how many. He took the magazines to the counter, paid for them, and then transported them to the public safety building, where they were held until trial.

William Doner, a Rockford police department investigator, testified that he went to the bookstore on May 6, 1987, with instructions to check for any obscene material. After flipping through approximately 20 to 30 magazines, he purchased two magazines during his 30- to 35-minute stay inside the store. Doner then returned to the police station and put the magazines into evidence.

John Novay, a detective with the Winnebago County sheriff's department, testified that he went to the bookstore on May 6, 1987, with instructions to find material with "penetration clearly visible." He looked through five to six magazines during the 15 to 30 minutes he was inside the store and selected two which he purchased. The magazines were then taken to the office and placed into evidence.

Murphy, Doner and Novay each testified that they executed the affidavits which were attached to the complaint for a search warrant. Evidence at the hearing revealed that the affidavits were prepared by the State's Attorney's office. Novay testified that the magazines purchased by him were presented to the judge and Murphy did not recall whether his were also.

A judge of the circuit court issued a warrant on May 7, 1987, for the premises at 623 7th Street, Rockford, Illinois. The warrant authorized the police to seize "magazines containing depictions or portions of the following acts: cunnilingus, fellatio, anal intercourse, excretion of semen from the penis onto the body of another person, masturbation, vaginal or anal insertion of prosethetic devices, or the insertion of the tongue into the anus, and vaginal intercourse, and records pertaining to the sale or possession of the same." Pursuant to the warrant, officers of the Rockford police department entered the premises in the afternoon of May 7, 1987, and conducted a search and seizure. The search lasted between two and in excess of three hours. The clerk on the premises was arrested.

The testimony of the police officers established the mechanics of the search. The bookstore premises were closed and locked, including the video arcade which was in an area of the bookstore separate from the magazines. There were no magazines in the video area. Customers on the premises when the search commenced were ejected. An officer was posted outside and potential patrons were denied entry without inquiry as to which part of the bookstore they wished to enter.

Identification officers were called to the scene. They photographed and video taped the entire premises in detail. The video arcade and some tissues and a condom found in the video arcade were the target of many of the photographs, as well as a 25-minute video tape. The tissues and the condom were seized as evidence.

The officers described their participation in selecting magazines for seizure. Doner's instructions were to seize any magazine with any kind of sexual conduct in it. A magazine would be taken if the sexual conduct were only on the front cover or on one page. No attempt was made to evaluate text. According to Doner, the magazine racks, which were full when the officers entered, appeared empty when they left.

Detective Steven Olson testified that he was the primary decisionmaker in the selection process. Looking for materials with "penetration clearly visible," he thumbed through a magazine before making the decision to take it, spending approximately 15 seconds on each magazine. He did not evaluate any story or theme. Olson claimed that no duplicates were taken, but the search warrant return indicated otherwise. One hundred fifty-five magazines were seized. In terms of titles listed, there were nine duplicates and one triplicate.

While executing the search warrant, a delivery man arrived with four or five boxes onto a two-wheel cart. He was allowed into the store and detained. One or two boxes on the cart were opened, while the others remained sealed. Using magazines removed from the opened boxes, a second complaint for search warrant, together with supporting affidavit, was filed. A second search warrant, this one for the delivery vehicle, was issued by a judge at 6:05 p.m. and executed that same evening. The search of the van was neither the subject of defendant's motion to quash, nor is it the subject of this appeal.

The magazines which were seized from the shelves in the bookstore as well as the boxes which had been delivered to the store were taken to the public safety building. The warrant return for the boxes removed from the store, which also listed the contents of the boxes taken from the van, showed multiple copies of a majority of the titles. The warrant return for the magazines removed from the store's shelves also revealed multiple titles.

At the conclusion of the evidence and arguments in the motion to suppress hearing, the court took both motions under advisement and issued a written ruling on March 24, 1989. With regard to the motion to dismiss, the court found that the "special justification" clause of the Illinois obscenity statute was vague and indefinite. However, the court held that section 11-20(f)(2) was severable from the remainder of the statute and refused to invalidate the entire statute. The balance of defendant's motion to dismiss was denied.

The court also denied the defendant's motion to quash. Although the record showed that more than one copy of certain titles had been removed from the bookstore, the court concluded that the duplicate copies were inadvertently taken. Accordingly, the court viewed the search as one conducted for evidentiary purposes, rather than one for pretrial adversarial censorship.

Trial commenced on June 6, 1989. The State's case was similar to the evidence presented in the suppression hearing. Over objection, the same three officers testified about an earlier visit to the bookstore. The seizure process was described in detail. Finally, 144 of the magazines seized at the time of the execution of the search warrant were admitted into evidence over the defendant's objection, as were the purchased magazines, browsing receipts, and a box containing a combination of magazines from the delivery vehicle and from the boxes which had been delivered to the bookstore premises.

Defendant's oral motion for a directed verdict at the close of the State's case in chief was granted in part. A directed verdict was granted on counts 23, 48, 56, and 68, leaving 140 counts.

Defendant called two witnesses, Dr. Joseph E. Scott and John C. Breen. Dr. Scott, a professor in the department of sociology at Ohio State University, testified as an expert witness with respect to a random digit dial telephone poll he had conducted in the State of Illinois regarding attitudes of adults about sexually explicit materials. Scott also testified about his follow-up work to the telephone survey called "ethnography," which included visiting a number of neighborhood video stores throughout the State.

John Breen, a legal investigator, testified that he went to various adult bookstores in different communities throughout Illinois, where he...