State v. Bartanen

• Decision Date: 30 January 1979
• Docket Number: No. 4355,4355
• Citation: 121 Ariz. 454,591 P.2d 546
• Parties: The STATE of Arizona, Appellee, v. Erland Earl BARTANEN, Appellant.
• Court: Arizona Supreme Court

Page 546

591 P.2d 546

121 Ariz. 454

The STATE of Arizona, Appellee, v. Erland Earl BARTANEN, Appellant.

No. 4355.

Supreme Court of Arizona, In Banc.

Jan. 30, 1979.

Rehearing Denied March 6, 1979.

John A. LaSota, Jr., former Atty. Gen., Robert K. Corbin, Atty. Gen., by William J. Schafer, III, and Gregory A. McCarthy, Asst. Attys. Gen., Phoenix, for appellee.

Berkman, Gordon, Kancelbaum & Levy by Bernard A. Berkman, Cleveland, Ohio, Hirsh & Shiner, P. C., by Robert J. Hirsh, Tucson, for appellant.

CAMERON, Chief Justice.

Defendant Erland Earl Bartanen was convicted by a jury and adjudged guilty in the Superior Court of Maricopa County of five counts of commercial exhibition of obscene films in violation of A.R.S. § 13-532. We have jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S.

Defendant raises the following questions on appeal:

1. Was the search warrant's description of the items to be seized sufficiently particular to withstand a motion to suppress?

2. Did the affidavit and the warrant fail to establish probable cause to believe that the films were obscene?

3. Did the definition of "prurient interest" employed at the trial constitute reversible error?

4. Did the change in definition of "prurient interest" from the grand jury proceedings to that employed at trial deny defendant fair notice of the charges against him?

5. Was the application of contemporary state standards to determine what is "patently offensive" error?

6. Did an alleged violation of a stipulation during the State's closing argument constitute reversible error?

The Owl Bookstore was located in Phoenix and was owned and operated by the defendant. The Owl Bookstore sold many different kinds of printed material, including many non-obscene items. In the back of the Owl Bookstore were located several coin-operated "videomatic" booths in which the allegedly obscene films were exhibited. A person wishing to view the film would enter an individual booth and on deposit of a quarter would see two minutes of the film. To see an entire film would require a deposit of five or six quarters.

A Phoenix city magistrate, after considering the affidavit of the investigating officer and after viewing the five films, issued a warrant for the seizure of the films. As a result, defendant was indicted by the Maricopa County Grand Jury; a jury trial was held and defendant was convicted on all

five counts from which convictions and judgments he appeals. THE SUFFICIENCY OF THE DESCRIPTION IN THE SEARCH WARRANT OF ITEMS TO BE SEIZED

The Phoenix Police Department apparently uses form affidavits to support requests for search warrants in obscenity cases and here there was an affidavit for each film. The affidavits recited that a duly commissioned police officer accompanied by a named Phoenix magistrate viewed motion pictures and that the films "contained explicit and patently offensive representations of ultimate sexual acts." A list of specific sexual acts on the forms were checked off by the affiant. The affidavits further stated that the films "contained explicit and patently offensive representations or descriptions" of other sexual or excretory functions. The affidavits finally recited that the affiant "believes, based upon his personal observation of the above-described * * * film(s) and based upon his personal experience that the * * * film(s) is/are obscene as defined by § 13-531.01, Arizona Revised Statutes * * *."

Neither the affidavits nor the warrant named the films by title. The affidavits and search warrant did, however, describe the place to be searched (the five booths) and the things to be seized (the films in the booths). The warrant itself described the films to be seized as follows:

"1) one 8mm film being displayed in booth # 3 (only Film)

2) the only 8mm film being displayed in booth # 9

3) the only 8mm film being displayed in booth # 19

4) the only 8mm film being displayed in booth # 1

5) the only 8mm film being displayed in booth # 18.

and which is/are obscene as defined by Section 13-531.01 Arizona Revised Statutes, as amended 1974 * * *."

The affidavits, warrant and return of warrant were all dated and signed the same day, 30 September 1976. It is defendant's contention that the affidavits and search warrant are defective in that they did not sufficiently describe the items to be seized. We disagree. The Fourth Amendment to the United States Constitution reads as follows:

"No warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

We believe that the affidavits and warrant "particularly" described "the place to be searched" and the "things to be seized." The warrant was timely, only a few hours having elapsed from the viewing of the films by the magistrate and the signing of the affidavit by the officer to the service of the warrant. The trial judge noted that there was no evidence that the films in the booths had been switched. The warrant left no doubt for the serving officer as to what was to be seized and where the items to be seized were to be found.

Defendant contends, however, that because of the danger of prior restraint of protected expression and the history of abuse of the search and seizure power directed at unpopular expression, see Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), "the constitutional requirement that warrants must particularly describe the 'things to be seized' is to be accorded the most scrupulous exactitude * * *." Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431, 437 (1965). See also Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968); A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964). We have no quarrel with defendant's citation of authority and the law contained therein. We do not believe, however, that they require that we reverse the judgments in this case. The failure to describe the films by their particular titles does not make the warrant unparticular as defendant contends. We agree that while it may have been the better practice to have described the films in greater detail and list the titles if known, it was not necessary where, as here, the warrant was served within a few hours of the viewing of the films in their particularly described location. We believe that the affidavits and warrant met the standards of the Fourth Amendment and the Arizona statute, A.R.S. §§ 13-1441, et seq.

To show that the warrant could have been more specific, defendant further contends that the return of the search warrant was much more detailed in its description of each film seized than the affidavit and warrant. It logically follows that the return of service of the warrant, in most instances, will be more detailed. A.R.S. § 13-1451, in effect at the time the warrant was served, required, as does the present statute A.R.S. § 13-3921, that the officer serving the warrant make and deliver a written inventory of the item taken pursuant to the warrant. This return, of necessity, will be more detailed. The courts will look, however, to the circumstances at the time the warrant was issued to determine its sufficiency and not to what occurs after the warrant is served. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). We find no error.

DID THE AFFIDAVIT AND WARRANT SHOW PROBABLE CAUSE?

No search warrant shall be issued except upon probable cause. A.R.S. §§ 13-1443, 1444 (in effect at the time of the warrant); State v. Robertson, 111 Ariz. 427, 531 P.2d 1134 (1975). In the instant case, although the magistrate viewed the films before the issuance of the warrant, see Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), since his affidavits were not reduced to affidavit or recorded, we will not consider what his conclusions were in our determination of the sufficiency of the warrant. Robertson, supra.

Defendant contends that since the affidavit only asserts that the material contained "explicit and patently offensive representations" of certain sex acts and did not assert that the films appealed to the prurient interest or that they did not have any "serious literary, artistic, political or scientific value," there was no showing of probable cause. The affidavit did contain the statement that the films offended against the statute, but defendant contends that this was not enough. We do not agree.

An affidavit in support of a search warrant does not have to recite each element of a crime and negate defenses to the crime the items may be offered against. The affidavit need only show that the impartial magistrate, having focused "searchingly upon the question of obscenity," Heller, supra, had probable cause to believe that the material was obscene. We find no error.

THE DEFINITION OF PRURIENT INTEREST

Defendant contends that the court in its instruction to the jury applied an overbroad definition of prurient interest. Although the statute, A.R.S. § 13-531.01(2), stated that an item is obscene when it "appeals to the prurient interest," it did not define the term "prurient interest," and the trial court instructed the jury over defendant's objection as follows:

"The term appeal to the prurient interest means to excite lustful thoughts, a shameful or morbid interest in sex or nudity, arouse sexual desires or sexually impure thoughts, inclined to or disposed to lewdness, having lustful ideas or desires.

"A prurient interest in sex is not the same as a candid, wholesome, or healthy interest in sex. Material does not appeal to the prurient interest just because it deals with sex or shows nude bodies. Prurient interest is an unhealthy, unwholesome, morbid, degrading or shameful interest in sex, a leering or longing interest. An appeal to the...