State v. Holmberg, C3-94-696
| Decision Date | 24 January 1995 |
| Docket Number | No. C3-94-696,C3-94-696 |
| Citation | 527 N.W.2d 100 |
| Parties | STATE of Minnesota, Respondent, v. Larry Allan HOLMBERG, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. A search warrant may be issued for evidence of an ordinance violation carrying misdemeanor penalties.
2. The Minneapolis disorderly house ordinance as applied to an adult bookstore owner whose customers commit indecent acts on the premises does not violate the First Amendment freedom of association.
3. Imposing criminal liability on a building owner for operating a disorderly house based on the conduct of the owner's customers does not violate due process.
4. A jury instruction that restricts the scope of a criminal ordinance does not make the ordinance in violation of the ex post facto clause.
5. The city is not collaterally estopped by a civil injunction obtained by an adult bookstore employee more than ten years earlier from enforcing the disorderly house ordinance against the owner of a different bookstore under different circumstances.
6. A defendant's own research into legal rulings in cases involving other parties is not a defense to criminal charges.
Hubert H. Humphrey, III, Atty. Gen., St. Paul, Surell Brady, Minneapolis City Atty., Michael Moline, Asst. City Atty., Minneapolis, for respondent State of Minn.
Randall D.B. Tigue, Minneapolis, for appellant Larry Allan Holmberg.
Considered and decided by LANSING, P.J., KLAPHAKE and MULALLY, * JJ.
This appeal is from a judgment of conviction for operating a disorderly house, a misdemeanor ordinance violation. See Minneapolis, Minn., Code of Ordinances § 385.170(b)(1) (1991). We affirm.
Appellant Larry Holmberg is the owner of Buns and Roses Bookstore in downtown Minneapolis. This adult bookstore has a video booth section that customers may enter after paying a $5.00 charge. Customers watch sexually explicit videos inside the individual booths, which have one-half or three-quarters length doors that swing open and can be locked from the inside with a sliding latch.
Undercover officers from the Minneapolis Police vice unit entered the store on various days during May, June and July of 1993. They observed numerous instances of indecent exposure, and solicitation to perform prostitution. Some of this conduct was directed at the officers, who arrested a number of bookstore customers for indecent conduct. Holmberg was charged by complaint with owning, operating or maintaining a disorderly house.
Holmberg moved to dismiss the complaint, arguing that the Minneapolis disorderly house ordinance, Minneapolis, Minn., Code of Ordinances § 385.170(b)(1), is unconstitutional. He also argued that the complaint failed to allege facts showing his knowledge or intent. The trial court denied the motion to dismiss the complaint. Shortly before trial, Holmberg renewed his motion to dismiss, and moved to suppress items seized under two search warrants. These motions were all denied in a posttrial order.
The state presented the testimony of the vice squad undercover officers who entered the video booth area of the bookstore. The officers testified that, on various dates between May 18, 1993 and October 27, 1993, they witnessed acts of indecent exposure, solicitation for prostitution, and sex acts performed openly in the view of others. The officers testified there were cracks between the doors and door frames of the booths making the interior of the booths easily visible to other patrons. The officers observed empty condom packages and what appeared to be used condoms on the floor.
Holmberg presented the testimony of several customers who were arrested but who testified they did not commit indecent conduct. Holmberg testified that he was unaware of the customers' behavior, but that he had taken several precautions against it, including the installation of the doors on the booths. He testified that he told the bookstore clerks to make periodic searches of the video booth area. The state presented photographs of signs posted in the area warning customers against prostitution and listing rules for the area.
The trial court did not allow Holmberg to testify about his personal review of, and reliance on, two Hennepin County court decisions from the early 1980s on enforcement of the indecent conduct ordinance in Minneapolis adult bookstores. The trial court allowed the state to present certified copies of the disorderly conduct convictions of the bookstore's customers as rebuttal evidence after one customer denied committing a sex act, and testified he pleaded guilty to indecent conduct rather than disorderly conduct.
1. Did the trial court err in failing to suppress evidence seized under the two search warrants?
2. Did the court err in failing to dismiss the complaint for lack of probable cause?
3. Is the Minneapolis disorderly house ordinance unconstitutional?
4. Is the city collaterally estopped by the 1982 civil injunction from enforcing the ordinance?
5. Did the trial court abuse its discretion in its evidentiary rulings?
6. Did the trial court prejudicially err in instructing the jury?
Holmberg argues that the June 9 and June 24 search warrants were invalid because there is no authority to issue a search warrant to discover evidence of an ordinance violation. The search warrant statute itself, however, defines "crime" to include "all violations of municipal ordinances for which a misdemeanor sentence may be imposed." Minn.Stat. § 626.05, subd. 3 (1992). Search warrants historically have been issued for health and safety inspections by municipal inspectors. See, e.g., Camara v. Municipal Court, 387 U.S. 523, 534, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930 (1967) (). Search warrants are valid to uncover evidence of ordinance violations carrying criminal penalties, such as the Minneapolis disorderly house ordinance under which Holmberg was convicted.
Holmberg argues that the trial court erred in failing to dismiss the complaint for lack of probable cause. The state contends that Holmberg cannot raise this issue following a conviction. But the problem with Holmberg's probable cause argument is not that it is barred but that it is irrelevant. The standard for the sufficiency of the evidence to support a conviction is much higher than probable cause. See, e.g., State ex rel. Hastings v. Bailey, 263 Minn. 261, 266, 116 N.W.2d 548, 551 (1962) (). If Holmberg could show on appeal that probable cause is lacking, he would necessarily prevail on a claim of insufficiency of the evidence. Even construing this argument as a challenge to the sufficiency of the evidence, it relies on the assumption that the terms of the 1982 Henningsgard injunction apply to this prosecution. This theory is discussed below.
Holmberg argues that the Minneapolis disorderly house ordinance infringes on the First Amendment freedom of association, violates due process, and, as construed in this case, violates the ex post facto clause.
The relevant part of the ordinance provides:
No person shall own, operate, manage, maintain or conduct a disorderly house, or invite or attempt to invite others to visit or remain in such disorderly house.
Minneapolis, Minn., Code of Ordinances § 385.170(b)(1) (1991). "Disorderly house" is defined as a "building, dwelling, establishment, premises or place where prohibited conduct occurs." Section 385.170(a)(5). "Prohibited conduct" is defined as follows:
Prohibited conduct shall mean activities occurring in violation of statutes or ordinances relating to any of the following:
a. Gambling;
b. Prostitution, acts relating thereto, or indecent conduct;
c. Sale or possession of controlled substances; or
d. Unlawful liquor sales.
Holmberg does not claim any of the "prohibited conduct" is expressive conduct covered by the First Amendment. His constitutional challenges are based on the lack of a requirement of knowledge or mental state.
Holmberg argues that the Minneapolis disorderly house ordinance violates the First Amendment right to freedom of association. He contends that the ordinance punishes him for the conduct of his customers, without any requirement that he have any knowledge of, or intent to further, their activities. The state argues that there is no First Amendment issue involved and that sexual conduct in a bookstore is not "expressive conduct." See Arcara v. Cloud Books, Inc., 478 U.S. 697, 707, 106 S.Ct. 3172, 3177, 92 L.Ed.2d 568 (1986) ().
The federal courts in Minnesota have dealt with a similar claim. In Hvamstad v. Suhler, 727 F.Supp. 511, 516-18 (D.Minn.1989), aff'd, 915 F.2d 1218 (8th Cir.1990), the district court rejected a constitutional challenge brought by the owner of a "rap parlor" against a nuisance statute allowing officials to close the building after a certain number of prostitution or other convictions. The court distinguished between the freedom of intimate association, based on general liberty notions, and the freedom of expressive association, based on the First Amendment. Id. at 516-17. The court noted that Arcara had disposed of any claim that a bookstore or similar business had any First Amendment interest in the indecent conduct of its customers. Id. at 518.
The Eighth Circuit in Suhler affirmed in a brief opinion noting that under Arcara there was no First Amendment claim. Hvamstad v. Suhler, 915 F.2d 1218, 1219 (8th Cir.1990). The court also noted:
The first amendment does not bar otherwise valid health...
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