Robinson v. City of Birmingham

• Decision Date: 04 October 1977
• Docket Number: 6 Div. 363
• Citation: Robinson v. City of Birmingham, 353 So.2d 528 (Ala. Crim. App. 1977)
• Parties: Michael ROBINSON v. CITY OF BIRMINGHAM.
• Court: Alabama Court of Criminal Appeals

Page 528

353 So.2d 528

Michael ROBINSON v. CITY OF BIRMINGHAM.

6 Div. 363.

Court of Criminal Appeals of Alabama.

Oct. 4, 1977.

Rehearing Denied Nov. 15, 1977.

Ferris S. Ritchey, Jr., Birmingham, for appellant.

W. O. MacMahon, III, Birmingham, for appellee.

LEIGH M. CLARK, Supernumerary Circuit Judge.

Appellant was convicted of knowingly and unlawfully exhibiting an obscene motion picture film entitled "Referral Service," which portrayed "Actual act, or acts of sexual intercourse, cunnilingus, fellatio, homosexuality between females, contrary to and in violation of Ordinance No. 67-2, Section 3 of the City of Birmingham, Alabama." A jury fixed his punishment at a fine of $150.00, to which the court added a term of hard labor for ninety days.

The evidence, consisting chiefly of the testimony of one witness, Officer David Luker, shows that appellant was employed by the Foxy Adult Cinema as manager in April 1975. The Foxy is an adult theater which shows exclusively motion picture films X-Rated for their sexual content. The general nature of the films shown in the theater is advertised on the exterior of the building. On April 10, 1975, Officer Luker visited the theater as part of his assignment as a member of the vice squad of the Police Department of Birmingham, to which squad he had been assigned since September, 1974. He paid five dollars for an admission ticket, entered the theater and viewed in its entirety a 16mm motion picture film, in sound and color, entitled "Referral Service." The viewing time was approximately sixty minutes. During the same time, approximately 12:00 Noon, the film was viewed by between approximately fifteen and thirty male and female patrons.

After viewing the movie, Officer Luker left the theater, went to City Hall, composed a search warrant and an arrest warrant, made an affidavit, and presented himself, the affidavit, and the warrants to Honorable Joseph G. Barnard, ¹ who executed the warrants. After appearing before Judge Barnard, narrating an account of his viewing the movie, and responding to questions asked him by Judge Barnard, Luker returned to the theater with the signed warrants on April 12, 1975, watched enough of the movie to ascertain it was the same one he had watched the day before, obtained the film from the projectionist after showing him the search warrant, and then arrested appellant.

The major contention of appellant is that the seizure of the film was an invasion of defendant's rights under the First, Fifth and Fourteenth Amendments to the Constitution of the United States. His premise for such contention is that Judge Barnard did not have sufficient information to warrant the issuance by him of the search warrant. The supporting affidavit in pertinent part is as follows:

". . . on 10 April 1975 at 12:00 P Affiant viewed a sound and color presentation entitled 'Referral Service' a motion picture: This film showed males and females engaged in actual sexual intercourse, fellatio and cunnilingus. Also presented in the film were scenes of the male organ in an erect state ejaculating openly in or near the mouth of a female actor. The film showed a male and female engaged in sexual intercourse on a piano bench. These scenes were presented as a series of obscene acts that had little or no relation to any plot or story. There were scenes presented in this film that had the camera focused closely on the genitals of the actors."

On the hearing of the motion to suppress, the following testimony was given by Officer Luker, called for the purpose of the motion by defendant:

"Q State to the Court what you told Judge Bernard.

"A I told Judge Bernard that I viewed the movie Referral Service at 305 North 18th Street, Foxy Adult Cinema. I told him I viewed it at approximately the 10th of April, 1975, at around 12:00 at Noon. The movie depicted males and females engaged in sexual conduct including actual sexual intercourse, cunnilingus, fellatio, ejaculation and lewd exhibition of the genitals.

"Q Did you tell him anything else besides that?

"A Nothing other than the fact that Michael Robinson sold me a ticket to the movie and was present when I viewed it.

"THE COURT: Is that this Defendant, Michael Robinson?

"A Yes, sir.

"Q In other words, what you told Judge Bernard is what you wrote on this affidavit, is that correct?

"A Yes, sir.

"Q And you did not go into detail scene by scene with Judge Bernard as to what the movie Referral Service contained, did you?

"A No sir, I didn't go into detail scene by scene. I think I did make reference to a scene involving an act of sexual intercourse on a piano. It had, I believe, a maroon spread over it. I'm not sure about the spread, but I know I did tell him about that scene.

"Q What I'm asking is, other than describing the type of sex acts that were being performed in this movie, you didn't go into detail about what the movie was about, who the characters were and where they were and things of that nature?

"A No, I didn't.

"Q And the Judge didn't ask you questions about the various scenes in the movie and where they were and what took place, when and with whom and however, did he?

"A I don't remember him asking me."

On cross-examination of the witness by the City, the witness again narrated what he had seen at the movie and thereafter said:

"Q And I will ask you if you took these facts and evidence to Judge Bernard at his office at City Hall in Birmingham, Alabama and related them to him and ask you if this is an Exhibit # 1 which has been introduced into evidence, I will ask you if the top portion of this affidavit here was filled out in your own handwriting, is that correct?

"A Yes, sir.

"Q Did you present this to His Honor?

"A I did.

"Q And did you swear to it and sign it in his presence?

"A Yes, sir.

"Q Did he question you at length concerning this affidavit before he signed it?

"A No, sir.

"Q Did he question you about it?

"A He questioned me, yes, sir."

A magistrate is required to focus searchingly on the question of obscenity before he issues a search warrant for the seizure of First Amendment material. Marcus v. Property Search Warrant, 367 U.S. 717, 732, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). Condemned especially in Marcus is the acceptance by a magistrate of the conclusional statements in the affidavit upon which the warrant is issued.

We do not consider, as appellant apparently does, that the affidavit in this case consists of conclusions merely, or even substantially. They are primarily stark statements of fact. We think also that appellant is not justified in the conclusion that the magistrate did not question the affiant to obtain more information than that which was contained in the affidavit. It is true, as shown above, that the affiant did not remember that the judge questioned him about "the various scenes in the movie and where they were and what took place, when and with whom and however," but it is clear that there was a colloquy between the magistrate and the affiant with reference to what the affiant had viewed in the particular movie. It is also clear, as shown by the affidavit, that "any plot or story" of the movie was not dependent upon, and was unrelated to the pornography that had attracted its patrons at five dollars a person. Whatever the story or the plot, it served merely as an accompaniment, as sublime music, wrested from the sublime verse it usually accompanies, does when applied to a filthy parody; which sometimes has the claimed redeeming quality of humor, although no such quality is even claimed as to the matter under consideration.

We do not doubt that at times it is necessary for a magistrate to proceed further than the examination of the affiant in this case, to preserve the First Amendment rights of persons in possession of material claimed to be obscene. In many cases more details would be necessary, the scheme is more delicately woven, the plan is more subtle, the nauseous scene more camouflaged. In this case, no more artistry is involved than in that of the hit-and-run pervert who scratches his vulgarisms upon the walls of the dirtiest public private places of the world, to vie with the surrounding putrescence from which the normal traveller as soon as possible retreats.

The blatant facts, as shown here, without any further detail, enabled the magistrate to make an assessment as a whole of the production, to the extent at least of determining the existence of probable cause for believing it was illegal. The searching focus required is necessarily relative and is dependent upon the object focused upon. In this case, no telescope, no microscope, no spectacles were required.

In arguing for the proposition that the search warrant was invalid, appellant states:

"It is the appellant's contention that the only manner in which the command of Marcus can be followed where a full length motion picture is alleged to be obscene is for the magistrate to view the movie. No other procedure can insure the required Constitutional scrutiny to this type of First Amendment material."

After searching for a case to support appellant, he candidly admits that he has found none, other than Hess v. State, 536 P.2d 366 (Okl.Cr.1975), from which appellant quotes:

"(the defendants) . . . contend that the trial court erred in overruling the defendants' motion to suppress the introduction of the seized film into evidence. In support of their contention the defendants argued that no magistrate viewed the film in an effort to focus searchingly upon the question of obscenity prior to the issuance of the warrant and that, therefore, the warrant was issued in violation of the explicit guidelines set down in the recent decision of the United States Supreme Court in Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). With this contention we agree. The record reflects that the Judge issuing the search warrant did not view the film prior to the issuance of a warrant. The facts in the instant case do...