State v. Flynn, 58467
| Decision Date | 18 February 1975 |
| Docket Number | No. 58467,No. 2,58467,2 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Donald FLYNN, Defendant-Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Thomas W. Shannon, Pros. Atty., Dennis F. Kay, Asst. Pros. Atty., St. Louis, for respondent.
Daniel R. Devereaux, Brady, Brady & Devereaux, St. Louis, for appellant.
STOCKARD, Commissioner.
Appellant was charged by information in the St. Louis Court of Criminal Correction with the sale of an obscene publication in violation of § 563.280, RSMo 1969, V.A.M.S., a misdemeanor, and was found guilty by the court; a jury having been expressly waived. Appellant attempts to present two constitutional issues, but as subsequently noted one is not preserved for appellate review. The other requires a ruling so appellate jurisdiction is in this court. A brief statement of the facts is appropriate.
On June 5, 1973, Police Officer Chase entered a book store at 519 Washington Avenue in St. Louis and asked appellant, an employee of the store, if he had 'any good books with _ _ pictures in them.' Appellant then selected the book, handed it to the officer and commented that it was what he wanted because it had some good color pictures in it. The book was encased in a clear plastic cover, and through the cover could be seen a picture of the upper portions of two nude persons in a sexually suggestive position. However, the officer recognized the book as one he had previously seen, and he was familiar with and knew of its contents. After he paid the purchase price for the book he placed appellant under arrest.
The book, the subject of this action, unquestionably is 'hard core' obscenity. We do not understand appellant to contend that it is not. He contends that it was error to admit the book into evidence because 'the arrest of defendant and seizure (of the book) was not supported by probable cause and was illegal when undertaken prior to a judicial determination that there (was) probable cause to believe a publication obscene.'
We first note that before trial ppellant did not file a motion to suppress the book as evidence although he necessarily knew that as a part of the state's evidence it would be offered in evidence. In State v. Harrington, 435 S.W.2d 318 (Mo.1968) , this court said: '' There was no motion to suppress the admission in evidence of the book, and therefore the point has not been preserved for appellate review.
If the point had been raised and preserved in timely manner it would have been fruitless for the reason that in these circumstances there was neither a search nor a seizure. The police officer purchased and paid for the book and he took possession of it by reason of that purchase. He owned it at the time he placed appellant under arrest. It was the officer's book, not appellant's. There is an attempt by appellant to contend that under the circumstances of this case, before he could be arrested for the sale of an obscene publication, it was necessary that the officer take the book to a magistrate for a determination of obscenity. He relies on cases such as Roaden v. Commonwealth of Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), and Heller v. State of New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), to the effect that a seizure of alleged obscene material must be undertaken pursuant to a warrant issued after a probable cause determination by an independent magistrate. But, as previously pointed out, in this case there was no seizure. Appellant was placed under arrest for the commission of a misdemeanor in the presence of the police officer. We find no merit to appellant's first point.
Appellant's second point is that the trial court should have sustained his motion for judgment of acquittal because § 563.280, RSMo 1969, V.A.M.S. is 'unconstitutionally vague and overbroad when applied to the defendant.'
This constitutional issue was raised for the first time in the motion for new trial. There was no motion filed to dismiss or quash the information, and there was no attack on it in any manner on the basis now asserted until after trial. Missouri has always adhered to the rule that to preserve for appellate review a constitutional issue, it must be raised at the earliest time consistent with good pleading and orderly procedure. As stated in Magenheim v. Board of Education of School District of Riverview Gardens, 340 S.W.2d 619, 621 (Mo.1970):
'To preserve a constitutional question for review here it must be raised at the first opportunity; the sections of the Constitution claimed to...
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