State v. Perry, s. 39435

• Citation: 567 S.W.2d 380
• Decision Date: 25 April 1978
• Docket Number: Nos. 39435,s. 39435
• Parties: STATE of Missouri, Plaintiff-Respondent, v. William PERRY, Samuel Randle and James Greer, Defendants-Appellants. to 39438. . Louis District,Division One
• Court: Court of Appeal of Missouri (US)

Page 380

567 S.W.2d 380

STATE of Missouri, Plaintiff-Respondent, v. William PERRY, Samuel Randle and James Greer, Defendants-Appellants.

Nos. 39435 to 39438.

Missouri Court of Appeals,St. Louis District,Division One.

April 25, 1978.

Motion for Rehearing and/or Transfer Denied June 8, 1978.

Application to Transfer Denied July 24, 1978.

Wolff, Frankel, McConnell & Passanante, Leonard J. Frankel, Richard S. McConnell, Jr., Clayton, for defendants-appellants.

Thomas W. Shannon, Pros. Atty., Edward Ward, Sidney Faber, Jim Sullivan, Asst. Pros. Attys., St. Louis, for plaintiff-respondent.

McMILLIAN, Judge.

Appellants appeal from convictions entered in the circuit court of the City of St. Louis for the sale of obscene publications or films in violation of § 563.280 RSMo 1969. ¹ The trial court, sitting without a jury, found appellants guilty as charged and assessed the following fines and costs: William Perry, No. 76-3284, $150.00; Samuel Randle, No. 76-3285, $100.00; James Greer, No. 76-3286, $100.00 and No. 76-3287, $150.00.

On April 29, 1977, appellant's hearing on his Motion to Suppress Evidence was held. At this time appellant stipulated, for the purposes of this hearing, that the material seized was obscene. Also, it was stipulated that the testimony as to the arrests of appellants and the procedures followed by the police in obtaining the obscene material in each case was the same; and therefore, testimony would only be taken in State v. Greer, No. 76-3286.

The pertinent testimony is as follows: Detective Roy Joachimstaler testified that on September 2, 1976, he entered a bookstore to investigate the possible sale of obscene material. As he entered, he noticed appellant Greer sitting behind a display counter. After this initial observation, he picked up and began to read some magazines which had been lying on the floor. All of the magazines were wrapped in a clear plastic material, and on the front and back covers were photographs which depicted a male and female involved in sexual activity.

After Detective Joachimstaler decided to buy three of the magazines, appellant Greer informed him that the total purchase price of the magazines was $22.52. Detective Joachimstaler then gave appellant a $20.00 bill and three $1.00 bills. After officer Joachimstaler received his change, he placed appellant under arrest. The officer then asked appellant Greer to return the $20.00 bill he had just exchanged. Appellant Greer complied. Detective Joachimstaler testified that after he made the arrest, he left the bookstore with all the money he had given Greer and the three magazines. According to the officer, this was standard police procedure.

On appeal appellant raises two points. First, that the transaction between the arresting officer and appellants did not constitute a sale, but rather an illegal seizure in violation of the First, Fourth and Fourteenth Amendments of the United States Constitution and § 542.281. Secondly, that the effect of the procedures followed by the arresting officer was to circumvent the statutory requirement that allegedly obscene material be seized only pursuant to a warrant properly issued by a judge of the circuit court.

As to the first point, the law of Missouri is squarely set against appellant. In State v. Flynn, 519 S.W.2d 10 (Mo.1975), the supreme court held that a sale is established where the evidence shows that the police officer asked for a publication of a certain type, that it was produced by appellant, that the officer paid the purchase price and that the book was delivered to him. Id. at 13. The supreme court held similarly in the companion cases of State v. Shouse, 519 S.W.2d 13 (Mo.1975), and State v. Richardson, 519 S.W.2d 15 (Mo.1975).

Applying this general...