People v. Penney, 56540

• Decision Date: 17 August 1972
• Docket Number: No. 56540,56540
• Citation: 287 N.E.2d 220,7 Ill.App.3d 191
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert PENNEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 220

287 N.E.2d 220

7 Ill.App.3d 191

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert PENNEY, Defendant-Appellant.

No. 56540.

Appellate Court of Illinois, First District, Third Division.

Aug. 17, 1972.

Howard T. Savage, Chicago, for defendant-appellant.

William J. Scott and James B. Zagel, Chicago, for plaintiff-appellee; Robert A. Novelle and Themis N. Karnezis, Chicago, of counsel.

McGLOON, Presiding Justice.

The defendant was charged in a complaint with the offense of obscenity in violation of Ill.Rev.Stat.1969, ch. 38, par. 11--20. After a bench trial, defendant was found guilty and fined $500 plus costs. He appeals.

We affirm.

The relevant facts are as follows: On November 14, 1969, a Maywood police sergeant purchased two magazines, to wit: one copy of Adult Words and Pictures and one copy of Bottom from the defendant's store in Maywood, Illinois. On November 17, 1969, the same police officer appeared before his Honor Judge Delaney who, after examining the magazines, signed a search warrant for defendant's store and a complaint and arrest warrant against the defendant. The defendant was subsequently arrested and released on bail.

On March 20, 1970, there was a hearing on defendant's motion to suppress the magazines as evidence. At the hearing the trial court quashed the search warrant but denied defendant's motion to dismiss the complaint. Prior to trial there was a stipulation between opposing parties as to the facts. The stipulation set out the facts essentially as they are set out above with the additional note that the police sergeant who purchased the magazines had merely picked them off a rack in a public area of the store, took them to the counter where he paid for them and received a requested receipt. As already noted, the trial resulted in defendant's conviction and fine.

On appeal the first issue raised by defendant is that his arrest and subsequent criminal conviction under the Illinois Obscenity Statute constituted an unconstitutional abridgement of his right to freedom of speech and press as guaranteed him under the First and Fourteenth Amendments of the United States Constitution. This is so, urges defendant, because he was not afforded, before arrest, a prior adversary hearing to determine whether or not the magazines were obscene. Without such a hearing defendant argues that, as a commercial book dealer, he is placed in a position of disseminating expression at the risk of fine and imprisonment should State authorities subsequently determine that what he has disseminated is obscene and without constitutional protection. The necessary result is a prior restraint upon freedom of speech and press. Defendant cites three recent federal cases in support of his position: Cambist Films, Inc. v. Illinois (D.C.1968), 292 F.Supp. 185; Delta Book Distributors v. Cronvich (D.C.1969), 304 F.Supp. 662; Poulos v. Rucker (D.C.1968), 288 F.Supp. 305.

The 'prior restraint' argument urged on this Court by the defendant has been successfully made on many prior occasions. However, the fact situations in these cases, as exemplified by the cases cited by plaintiff, have usually involved seizures of films or of the total or greater part of a particular supply of magazines or books. Under the facts of the instant case, we think the recent holding of our Supreme Court in the consolidated cases of People v. Ridens and City of Moline v. Walker (1972), 51 Ill.2d 410, 282 N.E.2d 691, necessitates the rejection of plaintiff's argument on this issue. In the Ridens and Walker cases the complaints against the defendants were based on the purchase of the offending magazines by police officers. At their bench trials, defendants made motions to dismiss on the grounds that they were not afforded prior adversary hearings. The motions were denied, and defendants in both cases were found guilty. On appeal our Supreme Court said at page 416, 282 N.E.2d at page 695:

Finally, the defendants claim that they were entitled to an adversary hearing on the question of whether, in fact, the offending publications were obscene, prior to the issuance of the warrants for their arrest. In support of this contention they cite numerous decisions which involved the seizure of books, magazines and films pursuant to the issuance of search warrants. In particular. the defendants cite People v. Kimmel, 34 Ill.2d 578, 217 N.E.2d 785, in which a conviction was reversed for just such a seizure.

We find the rationale of these cases inapplicable to the circumstances of the cases at bar. The cited cases involve the constitutional issue of prior restraint of the publications under the first amendment to the United States constitution. In the cases before us, no search warrants were issued, there was no seizure of all of the copies of the magazines in question, the arrests were made after sales of the magazines to the police officers, not before, and the defendants' businesses were not interrupted. We find, therefore, that the defendants were not entitled to an adversary hearing on the question of obscenity prior to their arrest.

See also Weintraub & Nawadylo v. Scott, 345 F.Supp. 780 (N.D.Ill., 1971). On the basis of the above quoted language, we conclude that the instant defendant was not entitled to a prior adversary hearing on the issue of obscenity.

The second issue raised by defendant is that the magazines are non-obscene as a matter of constitutional law, or in the alternative that obscenity vel non is protected by the guarantees of the First and Fourteenth Amendments. Defendant argues that the application of the standards for obscenity as set out in Supreme Court cases, particularly the case of Redrup v. New York, would necessitate our holding the instant magazines non-obscene. Therefore defendant argues that interference with their provision or sale is protected by the free speech provisions of the First Amendment and the Due Process Clause of the Fourteenth Amendment of the United States Constitution.

In Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, the Supreme Court held that obscenity as such was outside the protection of the First Amendment. The definition for obscenity set out in Roth and elaborated in the later cases of Manual Enterprises, Inc. v. Day (1962), 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, and Jacobellis v. Ohio (1964), 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, has been repeated many times: 'We defined obscenity in Roth in the following terms: '(W)hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' 354 U.S., at 489, 77 S.Ct. (1304), at 1311. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.' A Book named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General (1966), 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1.

At page 419, 86 S.Ct. at page 978 this latter opinion further notes: 'Each of the three federal constitutional criteria is to be applied independently; the social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness.'

Our Illinois statute has incorporated the Roth standards for obscenity. Ill.Rev.Stat.1969, ch. 38, par. 11--20(b) provides:

(b) Obscene Defined.

A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. A thing is obscene even though the obscenity is latent, as in the case of undeveloped photographs.

See City of Chicago v. Kimmel (1964), 31 Ill.2d 202, 201 N.E.2d 386.

Defendant argues that the Roth case, supra, has been modified by the decision in Redrup v. New York (1967), 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515. In the Redrup case the Supreme Court did appear to modify Roth by enunciating three additional criteria to be assessed in addition to those set out in Roth. In Redrup the Court was considering the validity of two criminal convictions for obscenity and a declaratory judgment of obscenity and associated injunction. The criminal convictions were under a municipal statute in New York City and a Kentucky State Statute. The declaratory judgment was rendered under an Arkansas State Statute. The Supreme Court said at page 769, 87 S.Ct. at page 1415:

In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. (Commonwealth of) Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; cf. Butler v. (State of) Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412. In none was there any suggestion of any assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. (City of) Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Public Utilities Comm'n (of District of Columbia) v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068. And in none was there evidence of the sort of 'pandering' which the Court found significant in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31.

The Court concluded that regardless of which member of the Court's definition of obscenity was used, these convictions could not stand.

The motion that the presence of one or more of the additional criteria enunciated in Redrup, supra, would henceforth have to be present before a constitutional...