State v. Bumanglag
| Decision Date | 10 September 1981 |
| Docket Number | No. 7161,Cr. N,7161 |
| Citation | 634 P.2d 80,63 Haw. 596 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Hilario BUMANGLAG, Defendant-Appellant (o. 51368). STATE of Hawaii, Plaintiff-Appellee, v. Delfin T. CRUZ, Defendant-Appellant (o. 51461). STATE of Hawaii, Plaintiff-Appellee, v. Roque C. SANTOS, Defendant-Appellant (o. 51437). STATE of Hawaii, Plaintiff-Appellee, v. Reginald K. ARAKI, also known as Reginald Kazuyoshi Araki, Defendant-Appellant (o. 51436). |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. The Fourth Amendment's prohibition of unreasonable seizures applicable to the States through the Fourteenth Amendment cannot be read in a vacuum. A seizure reasonable as to one type of material in one setting may be unreasonable in another setting or with respect to another kind of material.
2. When films are taken by the government from a commercial theater, reasonableness must be determined "in the light of the values of freedom of expression" because the pertinent setting presumptively invokes first amendment protection.
3. Under the Fourteenth Amendment, a state is not free to adopt whatever procedures it pleases for dealing with obscenity without regard to the possible consequences for constitutionally protected speech.
4. The First Amendment stands as a joint yet separate source of limitations on a state's power to seek and impound expressive material. Where rights of free speech and expression may be implicated in a seizure, the First Amendment serves as a fount of additional restrictions.
5. A seizure of films without a warrant though incident to a lawful arrest is generally invalid, notwithstanding that the seizure of evidence incident to a lawful arrest is generally sanctioned under fourth amendment principles.
6. Some form of judicial procedure "designed to focus searchingly on the question of obscenity" must be a prelude to the seizure and retention of allegedly obscene material.
7. The sensitive task of distinguishing legitimate from illegitimate speech is confided in a judicial office, rather than in the police.
8. A warrant for the seizure of a copy of a film for the purpose of preserving it as evidence in a criminal proceeding may be issued ex parte if a detached, neutral judge is afforded full opportunity to focus searchingly on the question of obscenity prior to finding probable cause. But where an ex parte warrant is issued, the seizure when effected must be followed by a prompt judicial determination of the obscenity issue in an adversary proceeding available at the request of any interested party.
9. Where suppression of seized films as evidence would be the only effective sanction for infringements of first and fourth amendment freedoms, it should be ordered, even though the primary right involved is the public's first amendment right of access rather than the defendant's fourth amendment immunity from unreasonable search and seizure. For if constitutional rights are to be anything more than pious pronouncements, some measurable consequence must be attached to their violation.
10. Each search and seizure case turns on its own facts, and the type of material seized and the setting in which seizure occurred determine whether suppression is appropriate in a speech-related context.
11. A constitutional question ordinarily is not decided where it is not absolutely necessary to a decision of the case, or where a defendant is unable to claim injury from the statute's operation.
12. The gravamen of the conduct proscribed by HRS § 712-1214(1)(a) is the spreading of obscene matter for monetary gain with knowledge of what the material contains, and the offense includes an element of scienter or awareness that has been declared a constitutional requirement by Supreme Court doctrine.
13. An employee of a commercial theater would be guilty of promoting pornography in violation of HRS § 712-1214(1)(a) only if he participated in the exhibition of an obscene film with the requisite knowledge of its subject matter and content; a person who sells an obscene book would be guilty only if the sale is made with knowledge of the book's "pornographic context and character."
14. HRS § 701-117 is an evidentiary device designed to enable the prosecution to get to the jury on something less than positive proof of a fact which may be almost solely within the knowledge of the defendant; it helps the prosecution to get its case to the jury without necessarily meeting its burden of persuasion.
15. The "Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." And an evidentiary device such as a presumption or an inference "must not undermine the factfinder's responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt."
16. Due process imposes a limitation that there be a natural and rational evidentiary relation between the facts proven and the ultimate fact which the statute authorizes to be found. And when an inference does not accurately reflect what history, common sense, and experience tell us about the relations between events in our society, a likelihood of a defendant being convicted on less than the requisite proof beyond a reasonable doubt is present.
17. The first amendment overbreadth doctrine is a departure from the rule that a person may not challenge a statute on the ground that it might be applied unconstitutionally in circumstances other than those before the court. The justification for the doctrine is that an overbroad statute might serve to chill protected speech because a person who contemplates protected activity might be discouraged by the overbroad statute.
18. The Supreme Court has imposed a stringent standard for the scrutiny of devices affecting the burden of proof where first amendment freedoms are involved, and its decisions furnish examples of legal devices and doctrines, in most applications consistent with the Constitution, which cannot be applied in settings where they have the collateral effect of inhibiting freedom of expression.
19. HRS § 712-1216(1), if applied, may have a collateral effect of inhibiting free expression. Its application would tend to limit public access to protected material because booksellers may then restrict what they offer to works they are familiar with and consider "safe." The distribution of protected, as well as obscene, matter may be affected by this selfcensorship.
20. In an obscenity prosecution, scienter may be demonstrated by circumstantial evidence, and the required scienter is not knowledge that the material was legally obscene. The prosecution is only required to show that the defendant had knowledge of the content and character of the material.
Evan R. Shirley, Honolulu (Wesley H. Ikeda, Honolulu, with him on the briefs; Shirley & Jordan, Honolulu, of counsel), for defendants-appellants.
Arthur E. Ross, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.
Before RICHARDSON, C. J., and OGATA, MENOR, LUM and NAKAMURA, JJ.
These consolidated appeals involve interlocutory orders issued in four criminal cases where the defendants have been charged with promoting pornography in violation of HRS § 712-1214(1)(a). 1 The questions raised by defendants-appellants are whether motion picture films that are primary evidence of the putative offenses were improperly seized and therefore are excludable at trial and whether HRS § 712-1216(1) 2 which makes the dissemination of pornographic material prima facie evidence of the disseminator's knowledge of the character and content of such material is invalid for constitutional reasons. Applicable constitutional provisions and precepts impel the suppression of the films as evidence and the invalidation of § 712-216(1).
The four cases stem from a series of raids conducted by members of the Honolulu Police Department in the spring of 1978 against two theaters owned and operated by Yuclan Enterprises, Inc. (hereafter Yuclan) where "X-rated" 3 or adult films were shown regularly, the Kaimuki Theatre and the Rex Theatre. The modus operandi followed by the police was substantially similar in all cases. In each, the operation commenced with a police officer's purchase of an admission ticket and his viewing of the allegedly pornographic movie and observation of the persons associated with its screening. The officer then prepared a detailed affidavit describing what was observed for presentation to a district judge who, on the strength of the document, issued warrants authorizing searches for and the seizure of films described in the affidavit and warrants for the arrests of persons named as projectionists or ticket sellers at the theaters.
The warrants were executed subsequently and the following seizures of purported evidence and arrests of alleged law violators were effected: on May 17, 1978, single copies of films entitled "Visions of Clair" and "Journey of O" were seized at the Kaimuki Theatre and projectionist Hilario Bumanglag was arrested; on June 7, 1978, single copies of films "Easy Alice" and "The World of Suzie Wong" were seized and projectionist Reginald K. Araki and ticket seller Roque C. Santos were arrested at the Rex Theatre; on June 17, 1978, single copies of "Visions of Clair" and "Easy Alice" were seized again at the Kaimuki Theatre and ticket seller Delfin T. Cruz was arrested.
The defendants were charged thereafter in the District Court of Honolulu with promoting pornography in violation of HRS § 712-1214(1)(a). They all demanded jury trials when arraigned, and the cases were transferred to the Circuit Court of the First Circuit for further action. Following arraignments there, the defendants' trials were scheduled for September and October of 1978. But on June 30, 1978, Yuclan, claiming ownership of the films, filed motions for the return of...
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