State v. J-R Distributors, Inc.
| Decision Date | 15 December 1988 |
| Docket Number | J-R,No. 53988-0,53988-0 |
| Citation | 111 Wn.2d 764,765 P.2d 281 |
| Parties | STATE of Washington, Petitioner, v.DISTRIBUTORS, INC., a Washington corporation, Richard Nelson Regan, Michael David Regan, and each of them, Respondents. |
| Court | Washington Supreme Court |
Norm Maleng, King County Prosecutor, Michael M. Danko, Deputy, Donna L. Wise, Deputy, Seattle, for petitioner.
Victor V. Hoff, Seattle, for respondent.
The State challenges the King County Superior Court order granting J-R Distributors' (J-R) motion for return of property. The State contends both that the Superior Court did not have jurisdiction to enter the order and that J-R's motion should not have been granted on the merits. The issues presented by the State are:
1. Whether the Superior Court had jurisdiction over the alleged pornographic material which was the subject matter of a criminal case, when the case has been appealed to an appellate court.
2. Whether there are constitutional requirements mandating a different standard of probable cause for affidavits supporting requests for the issuance of a search warrant for pornographic material.
3. Whether there are constitutional requirements mandating a judicial hearing prior to the seizure of alleged pornographic material rather than a review of affidavits by a magistrate.
We affirm the Superior Court's issuance of an order requiring the return of material seized beyond that properly held for evidence and remand for determination as to whether those items seized for evidentiary purposes may be used in the criminal action against J-R Distributors.
On October 9, 1986, a Seattle District Court Judge issued a warrant authorizing the search of J-R's retail outlet and warehouse. The warrant was issued pursuant to an affidavit filed by a detective of the Seattle Police Department. The affidavit stated that the detective believed that evidence of the crime of promoting pornography could be found at these locations. The affidavit also stated that the detective had inspected J-R's retail store and discovered a large number of "bondage" type magazines. See State v. Reece/State v. J-R Distribs., Inc., 110 Wash.2d 766, 757 P.2d 947 (1988). The detective purchased several of these magazines and briefly described their contents in the affidavit. The affidavit then listed 17 magazines sought to be seized and included a brief description of each magazine. Finally, the affidavit stated that the detective believed that additional pornographic material could be found at J-R's retail store and warehouse. The warrant was executed the same day.
Later that day the District Court Judge issued a second search warrant for the store, based on an affidavit from a second detective. This detective stated that while serving the first warrant he observed additional items that would support a charge of promoting pornography. The second warrant included a list of 18 magazines and a brief description of each. The District Court Judge then issued a second search warrant for the warehouse, based on the first detective's affidavit stating that he observed additional items there that would support a charge of promoting pornography. This affidavit listed 83 different magazines and 16 videotapes. Pursuant to these warrants, the police seized approximately 1,182 copies of 103 magazines and 16 videotapes.
On October 13, 1986, J-R filed a motion for return of property in Seattle District Court. Before that motion was heard, an information was filed in Superior Court charging J-R with 38 counts of promoting pornography and 55 counts of attempting to promote pornography, in violation of RCW 9.68.140. 1 On February 4, 1987, the superior court dismissed the information based on its conclusion that RCW 9.68.140 was unconstitutional. The State sought review of the dismissal in this court, pursuant to RAP 2.3(d) and RAP 4.2(a)(4). We accepted review, reversed the superior court and remanded the cause of State v. J-R Distributors for trial. The issue before us in this appeal was not before the court in State v. Reece/State v. J-R Distribs., Inc., supra. State v. Reece, supra, was concerned with the constitutionality of RCW 7.48A.010 and RCW 9.68.140 and held that these statutes did not violate the federal or state guarantees of freedom of speech. U.S. Const. amend. 1; Const. art. 1, § 5.
The State failed to return the seized materials to J-R following the dismissal of the information. J-R then noted its motion for return of property for hearing in Seattle District Court. On March 5, 1987, the District Court Judge denied the motion. J-R appealed this denial to the King County Superior Court on March 11, 1987. On May 21, 1987, the Superior Court entered an order requiring that the property be returned. We stayed the order, pending our determination as to whether the superior court had the authority to order the return of the seized materials.
The State contends that the Superior Court did not have jurisdiction to decide whether J-R's motion for return of illegally seized property had been improperly denied by the Seattle District Court. The State asserts that the superior court could not rule on the motion without first obtaining permission from the supreme court, because review had already been accepted by this court, pursuant to RAP 7.2.
RAP 7.2 delineates the authority of the trial court after review has been accepted by an appellate court. RAP 7.2(a) states that: "[a]fter review is accepted by the appellate court, the trial court has authority to act in a case only to the extent provided in this rule ..." RAP 7.2(e) grants the trial court authority to hear and determine postjudgment motions and actions to modify decisions in certain circumstances. However, "[i]f the trial court determination will change a decision then being reviewed by the appellate court, the permission of the appellate court must be obtained prior to the entry of the trial court decision." RAP 7.2(e).
Formerly, Washington practice required a party to first file a motion in the appellate court requesting permission to file a postjudgment motion in the superior court. Doss v. Schuller, 47 Wash.2d 520, 522, 288 P.2d 475 (1955). Now, under RAP 7.2, the motion is made initially in the trial court, and goes before the appellate court only if the lower court grants the motion. See RAP 7.2(e). The Comment to Rule 7.2(e) states:
Under these rules, the motion is heard first in the court best equipped to evaluate the grounds for a post-trial motion. Unnecessary work for the appellate court is eliminated.
Comment, Rule 7.2(e), 86 Wash.2d 1173 (1976). Thus, the procedure set forth in RAP 7.2(e) was intended to grant more authority to the trial court with regard to postjudgment motions.
In order to determine whether the superior court complied with the requirements set forth in RAP 7.2, we must determine whether its ruling on J-R's motion was a determination that affected a decision being reviewed by this court. See RAP 7.2(e).
J-R initially filed a Motion for Return of Illegally Seized Property in Seattle District Court. Its motion was governed by JCrR 2.10(e), which has since been replaced by CrRLJ 2.3(e). JCrR 2.10(e) provided:
(e) Motion for Return of Property. A person aggrieved by an unlawful search and seizure may move the court for the return of the property on the ground that the property was illegally seized and that he is lawfully entitled to possession thereof. If the motion is granted, the property shall be returned. If a motion for return of property is made or comes on for hearing after an indictment or information is filed in the court in which the motion is pending, it shall be treated as a motion to suppress.
J-R argues that this rule does not govern its motion since the rule refers to a motion for return made in the same court in which the information has been filed. Here the motion was filed in district court, and the information in superior court. J-R asserts that therefore the motion for return of property was not transformed into a motion to suppress, and the superior court properly exercised its appellate jurisdiction in reversing the district court's denial of the motion.
This interpretation is supported by the technical language of JCrR 2.10(e). However, it is not in accord with the intent behind the rule. If criminal charges are pending in any court, a determination that the evidence forming the basis for those charges was illegally seized is tantamount to a suppression order. Thus, the basis for changing a motion for return into a motion to suppress lies in the fact that criminal charges have been filed. It is not material that the charges may have been filed in superior court while the motion was made in district court. The rule does not contemplate district court judges ruling on return motions when criminal charges are pending in superior court.
JCrR 2.10(e) has been amended to provide for such situations. CrRLJ 2.3(e)(1) now states:
(1) Procedure if Charges Pending. If a motion based on the ground that property was illegally seized is made or comes on for hearing after a complaint or citation and notice is filed in the court in which the motion is pending, it shall be treated as a motion to suppress. If charges are pending in another court at the time a motion made upon any ground is filed or comes on for hearing, the motion shall be transferred to the other court and subject to its rules of procedure.
Had this rule been in effect at the time J-R filed its motion for return of property, the motion would have been transferred to Superior Court, where the information was filed, and would have become a motion to suppress.
In sum, even though the precise language of JCrR 2.10(e) suggests that J-R's motion need not be treated as a motion to suppress, the intent behind the rule and the practical effect of the order...
To continue reading
Request your trial
-
State v. Perrone
...to First Amendment freedoms. (Footnote and citations omitted.) Stanford, at 485, 85 S.Ct. at 511; see State v. J-R Distribs., Inc., 111 Wash.2d 764, 774, 765 P.2d 281 (1988); Walthall v. State, 594 S.W.2d 74, 78, 32 A.L.R.4th 364 (Tex.Crim.App.1980); compare United States v. Truglio, 731 F.......
-
State v. Moses
...the defendant is involved in criminal activity. State v. Huft, 106 Wash.2d 206, 209, 720 P.2d 838 (1986) ; State v. J-R Distribs. Inc., 111 Wash.2d 764, 774, 765 P.2d 281 (1988). In examining a probable cause determination, the only information we consider is what was before the issuing jud......
-
State v. Espey
...Cole, 128 Wash.2d 262, 286, 906 P.2d 925 (1995); State v. Young, 123 Wash.2d 173, 195, 867 P.2d 593 (1994); State v. J–R Distribs., Inc., 111 Wash.2d 764, 774, 765 P.2d 281 (1988). Yet if the affidavit offers no “substantial basis for determining probable cause,” we cannot defer to the magi......
-
State v. Espey
...128 Wash.2d 262, 286, 906 P.2d 925 (1995) ; State v. Young, 123 Wash.2d 173, 195, 867 P.2d 593 (1994) ; State v. J–R Distribs., Inc., 111 Wash.2d 764, 774, 765 P.2d 281 (1988). Yet if the affidavit offers no “substantial basis for determining probable cause,” we cannot defer to the magistra......
-
Survey of Washington Search and Seizure Law: 1998 Update
...they contain." Stanford, 379 U.S. at 485, 85 S. Ct. at 511-12, 13 L. Ed. 2d at 437; State v. J-R Distrib., Inc., 111 Wash. 2d 764, 774, 765 P.2d 281, 286 (1988). When the First Amendment is involved, nothing should be left to the discretion of the officer executing the warrant. Stanford, 37......
-
Survey of Washington Search and Seizure Law: 2005 Update
...is the ideas [that] they contain." Stanford, 379 U.S. at 485, 85 S. Ct. at 511-12, 13 L. Ed. 2d at 437; State v. J-R Distrib., Inc., 111 Wn.2d 764, 774, 765 P.2d 281, 286 (1988) (en banc). When the First Amendment is involved, nothing should be left to the discretion of the officer executin......
-
Table of Cases
...124 Wn.2d 1018 (1994): 11.5(3), 11.7(1)(a)(ii) State v. Jones, 130 Wn.2d 302, 922 P.2d 806 (1996): 12.7(6) State v. J-R Distribs., Inc., 111 Wn.2d 764, 765 P.2d 281 (1988): 7.5(5) State v. Jungers, 125 Wn. App. 895, 106 P.3d 827 (2005): 12.8(8) State v. Keeney, 112 Wn.2d 140, 769 P.2d 295 (......
-
§ 7.5 Authority of Trial Court After Review Accepted
...the appellate court is not affected, and the order denying the motion can be entered by the trial court. State v. J-R Distributors, Inc., 111 Wn.2d 764, 769, 765 P.2d 281 (1988); Metro. Park Dist. of Tacoma v. Griffith, 106 Wn.2d 425, 439, 723 P.2d 1093 (1986). If, however, the trial court ......