State v. Alexander

• Decision Date: 19 July 1979
• Docket Number: No. 48598,48599.,48598
• Citation: 281 NW 2d 349
• Parties: STATE of Minnesota, Appellant, v. Ferris ALEXANDER, Respondent. STATE of Minnesota, Appellant, v. Edward ALEXANDER, Respondent.
• Court: Minnesota Supreme Court

281 N.W.2d 349 (1979)

STATE of Minnesota, Appellant, v. Ferris ALEXANDER, Respondent.

STATE of Minnesota, Appellant, v. Edward ALEXANDER, Respondent.

Nos. 48598, 48599.

Supreme Court of Minnesota.

May 18, 1979.

Rehearing Denied July 19, 1979.

Warren Spannaus, Atty. Gen., St. Paul, Gary W. Flakne, County Atty., Vernon E. Bergstrom, Chief, Appellate Division, David W. Larson and Lee W. Barry, Asst. County Attys., Minneapolis, for appellant.

Randall D. B. Tigue, Minneapolis, for Ferris Alexander.

Freeman, Gill, Anderson, Eagan & Keating and Kermit A. Gill, Minneapolis, for Edward Alexander.

Owen Gleason, Patsy Reinard, Legal Counsel, Minneapolis, for Minnesota Civil Liberties Union, amicus curiae.

Robert J. Alfton, City Atty., and Larry L. Warren, Asst. City Atty., Minneapolis, for City of Minneapolis, amicus curiae.

Heard, considered, and decided by the court en banc.

OPINION

YETKA, Justice.

Appeal by the state from an order of a three-judge district court, Hennepin County, dated January 24, 1978, reversing a judgment of conviction for contempt of court against defendant Ferris Alexander and affirming a pretrial order dismissing a contempt charge against defendant Edward Alexander. This court granted permission to appeal on March 23, 1978. We affirm in part and reverse in part and remand to the municipal court.

On April 19, 1976, Minneapolis police officer Jerry Larson, after purchasing a ticket, watched the movie "Oriental Blue" at the American Theater. On April 27, 1976, based upon his observation and the affidavit of an investigator in the city attorney's office, a criminal complaint was filed against Edward Alexander, Ferris Alexander, Peter Saba, and Benedict Jochim¹ for violation of the Minneapolis obscenity ordinance. On the same day, a judge of the Hennepin County Municipal Court issued an order directing the defendants "to retain said motion picture intact and in its entirety as shown on April 19, 1976" and to "make available said film for display to the Court to determine whether there is probable cause to believe said film is obscene." The prior adversary hearing was set for May 5, 1976. A similar order was issued on May 4, for a hearing to be held on May 10. On May 10, respondents were granted a continuance to May 14; the May 4th order remained in effect.

On Friday, May 14, 1976, respondents moved the municipal court to certify the question of the hearing procedures to the Minnesota Supreme Court and to grant them a continuance to seek a discretionary appeal. The motion was denied. The film was not brought into court as ordered. The court continued the hearing to May 17 in order to allow respondents to seek a writ of prohibition from the Supreme Court.

On Monday, May 17, counsel for respondents informed the municipal court that he had not sought a writ of prohibition because he had not had sufficient time and, further, that the film was no longer playing at the American Theater and had not been brought into court. The respondents, upon request, left the courtroom, and the adversary hearing was held. The court found probable cause to believe the film was obscene, based on the report of Officer Larson, and probable cause to believe the respondents were owners and operators of the American Theater and agreed to issue a search warrant for the film. The court also requested the city attorney to charge respondents with contempt of court for violating the court order.

A search warrant was executed on May 26, 1976, the film was not found, and subsequently a criminal complaint was filed, charging respondents with contempt of court, in violation of Minn.St. §§ 588.20(4), (5); 609.05.

Respondents moved to dismiss the complaint on August 16. That motion was denied (September 29 and 30), and trial was set for October 5. Upon motion of counsel, separate trials were ordered. A verdict of guilty was returned against respondent Ferris Alexander on October 21. The sentence of 90 days was stayed pending appeal to the district court.

Respondent Edward Alexander moved to dismiss the charges against him.² This motion was granted on April 11, 1977, and was appealed by the Hennepin County Attorney.

The two appeals were consolidated and heard by three judges of Hennepin County District Court on June 13, 1977, and October 17, 1977. The conviction of Ferris Alexander was reversed, and the dismissal of the charges against Edward Alexander was affirmed. The state is appealing from that decision.

The legal issues raised on this appeal are:

1. Does requiring an exhibitor of an allegedly obscene film to produce that film at a prior adversary hearing violate his right against self-incrimination?

2. Were the defendants in this case representatives of a business entity and therefore not entitled to claim the privilege against self-incrimination?

3. Was the respondents' failure to obey the court order based on a good faith assertion of their fifth amendment privilege and thus a defense to a charge for contempt of court?

1. This court has established the rule that an allegedly obscene film cannot be seized unless there has been a prior adversary hearing for a judicial determination that the film is obscene. See, City of Duluth v. Wendling, 306 Minn. 384, 237 N.W.2d 79 (1975); Johnson v. City of Rochester, 293 Minn. 156, 197 N.W.2d 244 (1972). The purpose of this rule is to protect the first amendment rights of both the exhibitor and the public by preventing the prior restraint of nonobscene materials. See, Quantity of Copies of Books v. Kansas, 378 U.S. 205, 213, 84 S.Ct. 1723, 1727, 12 L.Ed.2d 809, 814 (1964); Marcus v. Search Warrants of Property, 367 U.S. 717, 731, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127, 1136 (1961). The issue presented by this case is whether a court may constitutionally order an exhibitor to protect and preserve the film and to bring an allegedly obscene film to a prior adversary hearing.

The defendants argue that requiring them to produce the film at a prior adversary hearing is a violation of their fifth amendment right against compulsory self-incrimination. The state argues that producing the film in court is not sufficiently testimonial to violate the fifth amendment.

In Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976), the United States Supreme Court addressed the issue whether production of evidence in response to a subpoena could be sufficiently testimonial to implicate the right against self-incrimination. It found that:

"The act of producing evidence in response to a subpoena * * * has communicative aspects of its own, wholly aside from the contents of the papers produced. Compliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control * * *. It also would indicate the * * * belief that the papers are those described in the subpoena. Curcio v. United States, 354 U.S. 118, 125, 77 S.Ct. 1145, 1150, 1 L.Ed.2d 1225, 1231 (1957). The elements of compulsion are clearly present, but the more difficult issues are whether the tacit averments * * * are both `testimonial\' and `incriminating\' for purposes of applying the Fifth Amendment. These questions perhaps do not lend themselves to categorical answers; their resolution may instead depend on the facts and circumstances of particular cases or classes thereof." 425 U.S. 410, 96 S.Ct. 1581, 48 L.Ed.2d 56.

The court went on to note factors that might be significant in determining that the act of producing the evidence involves testimonial self-incrimination. One such factor is whether the existence or possession of the evidence is itself illegal, or is in issue in the case. 425 U.S. 411, 96 S.Ct. 1581, 48 L.Ed.2d 56. Another is the possibility of "implicit authentication," 425 U.S. 412, 96 S.Ct. 1582, 48 L.Ed.2d 57; that is, that compliance with the subpoena indicates that the one producing the evidence believes that the evidence produced is that described in the subpoena.

In the instant case, defendants contend that the act of producing the film at the hearing would be sufficiently testimonial and incriminating to qualify for fifth amendment protection because it would, in effect, be an admission of their control or possession of the film and an admission of their belief that the film produced was the film described in the order and, consequently, of their knowledge of the nature of the film. Minneapolis Ordinance No. 385.130, under which the defendants were charged, provides as follows:

"Distributing obscene materials. It is unlawful for any person knowingly to exhibit, sell, print, offer to sell, give away, circulate, publish, distribute, or attempt to distribute any obscene book, magazine, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, motion picture film, play, image, instrument, statue, drawing or other article which is obscene. `Obscene\', for the purpose of this section, is defined as follows: Whether to the average person, applying contemporary, community standards, the dominant theme of the material taken as a whole appeals to prurient interests."

Defendants contend that the state is required to prove that they owned and operated the American Theater (or were otherwise in control of the exhibition of the film) and that they knew the nature of the film and that these elements will be easier to prove if defendants produce the film.

The state's response is that it was not relying on production of the film to prove possession or control. Whatever the state may argue now, however, at the time of the order the only evidence linking respondents to the American Theater was that contained in an affidavit of an investigator for the city attorney's office, stating that the application for a state sales tax permit for the theater was submitted in the name of Edward Alexander. The state clearly had to present more evidence than this to prove beyond a reasonable doubt that defendants had responsibility for exhibiting films...