People v. Sohmers

• Decision Date: 12 January 1968
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Edward SOHMERS and Michael Gay, Defendants.
• Court: New York City Court

Page 714

286 N.Y.S.2d 714

55 Misc.2d 925

The PEOPLE of the State of New York, Plaintiff, v. Edward SOHMERS and Michael Gay, Defendants.

Criminal Court of the City of New York, New York County, Part 2B.

Jan. 12, 1968.

Frank S. Hogan, Dist. Atty. (Daniel Markewich and Lawrence Hochheiser, Asst. Dist. Attys., of counsel), for the People.

Joseph Panzer, New York City (Arnold E. Wallach, New York City, of counsel), for defendants.

OPINION

WILLIAM E. RINGEL, Judge.

The defendants are charged with the sale and possession with intent to sell of obscene material in violation of former Penal Law, Section 1141 (subdivision 1).

This proceeding was initiated by a police officer who executed a search warrant pursuant to which reels of motion picture film allegedly depicting acts and scenes in violation of the statute were seized. In addition, books, photographic negatives, photographs and other items were also seized.

The defendants moved to controvert the warrant and to suppress the items seized on the sole ground that the warrant is constitutionally void for vagueness. It is the defendants' position that the phraseology used in the warrant suffers from the same constitutional infirmity as the language of the warrant directing the seizure of motion picture film depicting hard core pornography, held insufficient as being too vague in People v. Rothenberg, 20 N.Y.2d 35, 281 N.Y.S.2d 316, 228 N.E.2d 379.

The sufficiency of the affidavit in support of ithe search warrant is not attacked. The court issued the warrant after it had viewed a reel of motion picture film which had been purchased previously in the defendants' premises. The issuing court was thus cognizant of the pornographic character of the material to be seized and described in the language of the warrant.

The pertinent language of the instant search warrant directed the police officer to search for motion picture film depicting 'lewd, indecent, lavisicous (lascivious) and other indecent or unnatural acts and any other illegal pornographic material.' From this language of the warrant it is clear that the officer was directed to search for and seize reels of motion picture films depicting unnatural acts. The additional verbiage used may be considered as amplification and descriptive of the words 'unnatural acts.' This conclusion is supported by the maxim of Noscitur a soccis, which encompasses the rule of Ejusdem generis. That maxim states, 'General and specific words, capable of analogous meaning, when associated together, take color from each other, so that general words are restricted to a sense analogous to less general.' (Black's Law Dictionary, 3d Ed.) The phrase, 'and any other illegal pornographic material,' refers to the words preceding it. Reading the warrant as a whole, the foregoing phrase cannot be said to Broaden the scope of the warrant, but is Ejusdem generis with the words preceding it. In fact, this phrase may be treated as surplusage, since if the warrant is valid, seizure of other illegal pornographic material at the same time and place where the warrant is executed would be lawful. Material which bears a reasonable relationship to the purposes of a search under a lawful warrant may be seized (United States v. Joseph, 174 F.Supp. 539, affd. 278 F.2d 504, cert.den. 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52).

In obscenity cases, the courts have carefully scrutinized search warrants in order to prevent police officers who execute the warrants from exercising the functions of a censor in deciding what is or is not obscene, and, thus, in effect, usurping the court's prerogative in making that determination (Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; People v. Rothenberg, supra). The rule is equally applicable to motion picture film (People v. Joffe, 54 Misc.2d 356, 282 N.Y.S.2d 591).

In determining the kind of material which the court which issued the warrant intended that the officer should seize in executing the warrant, resort may be had to the allegations of the supporting affidavit (United States v. Warden, 2 Cir., 381 F.2d 209; People v. Rainey, 14 N.Y.2d 35, 248 N.Y.S.2d 33, 197 N.E.2d 527, Code Cr.Proc. Sections 793, 794). From a reading of the supporting affidavit it is clear that the material intended to be seized was reels of photographic film depicting unnatural acts.

If the phrase, 'unnatural acts,' lacks specificity, the instant warrant must be voided. It is well settled that search warrants which are couched in vague language and which are not sufficiently specific to identify the items to be sought for and seized are considered general warrants and as such are void (Stanford v. State of Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431; Marcus v. Search Warrant, supra). It has been held in People v. Matherson, 16 N.Y.2d 509, 260 N.Y.S.2d 448, 208 N.E. 180, that a warrant using the phrase, 'obscene, lewd and indecent books and materials' was not sufficiently specific to identify the material to be seized. Similarly, a warrant employing the phrase, 'hard core pornography' was likewise held not sufficiently specific (People v. Rothenberg, supra).

While the court's research has failed to disclose any reported case in this jurisdiction which interpreted the meaning of the phrase, 'unnatural acts,' it would seem that this phrase is nevertheless sufficiently specific to withstand the challenge of vagueness. Referring to various dictionary definitions of the term, ...