State v. Princess Cinema of Milwaukee, Inc.

Decision Date03 June 1980
Docket Number78-473-CR,No. 78-472-C,78-472-C
Citation292 N.W.2d 807,96 Wis.2d 646
Parties, 6 Media L. Rep. 1458 STATE of Wisconsin, Plaintiff-Respondent, v. PRINCESS CINEMA OF MILWAUKEE, INC., Defendant-Appellant-Petitioner.
CourtWisconsin Supreme Court

John H. Weston (argued), Beverly Hills, Cal., for appellant-petitioner; Fleishman, Brown, Weston & Rohde, Beverly Hills, Cal., Stephen M. Glynn and Shellow & Shellow, Milwaukee, on brief.

James H. Schaefer, Asst. Dist. Atty., argued, with whom on briefs was E. Michael McCann, Dist. Atty., Milwaukee County, on brief, for plaintiff-respondent.

DAY, Justice.

The principal question presented for review is whether the criminal obscenity statute is unconstitutionally vague and overbroad. Sec. 944.21(1)(a), Stats. (1977). We conclude that it is overbroad and we decline to further judicially modify the statute to bring it within the strictures of the First Amendment as interpreted by the United States Supreme Court.

Between April and August 1977, twenty motion pictures were seized as evidence by the officers of the Milwaukee Police Department from the Princess Cinema, a motion picture theatre operated by the defendant Princess Cinema of Milwaukee, Inc. Search warrants authorizing seizure of the films were issued after hearings were held before a trial judge for the purpose of determining whether there existed probable cause that the films exhibited at the theatre were obscene. 1

A motion to suppress the films as evidence at trial, and a motion to dismiss the prosecution, were filed by the defendant. In the motion to suppress it was asserted that the obscenity statute, sec. 944.21(1)(a), Stats. (1977) was unconstitutional on its face and as construed by this Court. The trial judge in ruling on the motion, concluded that this Court's decision in State ex rel. Chobot v. Circuit Court, 61 Wis.2d 354, 212 N.W.2d 690 (1973) adopted the constitutional standards for defining obscenity which were enumerated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) and engrafted those standards onto the obscenity statute. The trial judge recognized that in formulating the standards to be applied to define obscenity, this Court in State ex rel. Chobot v. Circuit Court, supra, deviated from the Miller v. California standards. He concluded, however, that any misstatement by the Court was unintentional and refused to construe State ex rel. Chobot as intending to differ in any constitutionally significant manner from Miller v. California. The trial court concluded that the obscenity statute as interpreted by this Court was constitutional, and on that basis, denied the motion to suppress.

The defendant thereupon entered a plea of no contest to each of the twenty counts. A notice of appeal was filed from the judgment of conviction and the order denying the motion to suppress. Review of an order denying a motion to suppress may be had pursuant to sec. 971.31(10), Stats. (1977) which provides:

"971.31. Motions Before Trial. . . . (10) An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty."

Although the statute does not expressly refer to pleas of no contest, this Court has stated that except as to collateral effects, a plea of no contest is equivalent to a plea of guilty, see, Cross v. State, 45 Wis.2d 593, 599, 173 N.W.2d 589 (1970), and we have reviewed an order denying a motion to suppress pursuant to sec. 971.31(10), Stats. even when the defendant has entered a plea of no contest. Scott v. State, 73 Wis.2d 504, 508, 243 N.W.2d 215 (1976).

An issue addressed by the defendant only briefly in his petition to appeal is whether the unconstitutionality of the obscenity statute automatically renders the search and seizure unlawful and therefore subject to a motion to suppress. The defendant merely assumes that if the obscenity statute is unconstitutional, the materials seized under a search warrant executed according to the proper procedural standards, should be suppressed. We do not agree. In Michigan v. DeFillippo, 443 U.S. 31, 40, 99 S.Ct. 2627, 2633, 61 L.Ed.2d 343 (1979) the United States Supreme Court held that the subsequent determination that an ordinance forming the basis for an arrest was unconstitutional, did not render the initial arrest and the search incident to that arrest unlawful under the Fourth Amendment. Probable cause is to be determined on the basis of information known to the officer or magistrate at the time of the arrest or search. "The purpose of the exclusionary rule is to deter unlawful police action. No conceivable purpose of deterrence would be served by suppressing evidence which, at the time it was found . . ., was the product of a . . . lawful search. To deter police from enforcing a presumptively valid statute was never remotely in the contemplation of even the most zealous advocate of the exclusionary rule." Michigan v. DeFillippo, 443 U.S. at 38, 99 S.Ct. at 2633 (n.3). Generally speaking, the later found unconstitutionality of the underlying substantive statute is not relevant on a motion to suppress. 2 W.R. LaFave, Search And Seizure, A Treatise On The Fourth Amendment, vol. l, § 3.2 (1978). The Supreme Court in Michigan v. DeFillippo, supra, drew a distinction between statutes which by their own terms authorized searches under circumstances which did not satisfy the traditional warrant and probable cause requirements of the Fourth Amendment, 3 and the statute involved in that case where its only relevance to the validity of the arrest and subsequent search was as it pertained to the "facts and circumstances" constituting probable cause. Michigan v. DeFillippo, 443 U.S. at 39-40, 99 S.Ct. at 2633.

This is not to say that the constitutionality of the substantive statute under which the defendant was arrested cannot be challenged. It is simply that the motion to suppress, as a general rule, is not the proper vehicle for doing so. However, because we determine that the issue presented here can be reviewed by this Court via another route, it is not necessary for us to determine whether the interplay between the First and Fourth Amendment freedoms in this case constitutes an exception from the holding of Michigan v. DeFillippo, or whether there exist other factors which would materially distinguish the two cases. We are also mindful of the possibility, which exists in every case involving the chance that protected expression may be suppressed, that prior restraint may be implicated.

Just as a plea of guilty, when voluntarily and understandingly made, constitutes a waiver of non-jurisdictional defects and defenses including claims of violations of constitutional rights prior to the plea, Mack v. State, 93 Wis.2d 287, 293, 286 N.W.2d 563 (1980), so too will a plea of no contest. See, Cross v. State, supra. However, on the basis of the statewide importance of the matter and in the interest of justice, and in spite of possible waiver, we choose to consider the constitutional question presented. 4 See, Mack v. State, 93 Wis.2d at 296-297, 286 N.W.2d 563; Flores v. State, 69 Wis.2d 509, 510, 230 N.W.2d 637 (1975).

The court of appeals in an opinion published at 90 Wis.2d 543, 280 N.W.2d 323 (Ct.App.1979), held that it was not clear until the United States Supreme Court's decision in Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977) that an objective standard was to be applied to the determination of serious literary, artistic, political, or scientific value under Miller v. California. The court of appeals concluded that this Court retained discretion to apply community standards to the third part of the Miller test until Smith v. United States was handed down. The court of appeals then construed sec. 944.21(1)(a), Stats. to incorporate an objective standard to determine the serious literary, artistic, political, or scientific value of the work. The judgment of conviction on three counts consisting of movies shown prior to the date of decision in Smith v. United States was vacated and remanded for additional proceedings because "the defendant may have been prejudiced by the trial court's incorrect interpretation of Miller and Chobot." 90 Wis.2d at 553, 280 N.W.2d at 328. The remaining seventeen counts were based on movies shown after the decision in Smith v. United States. As to these counts the conviction was affirmed based on the court of appeals' new construction of the obscenity statute.

The defendant contends that sec. 944.21(1)(a), Stats. is unconstitutionally vague and overbroad on its face and as construed by this Court; that application of a "corrected" interpretation of the statute cannot be retroactively applied; and that in any case, the statute should not be given another judicial interpretation, but rather the obligation of redrafting a constitutionally acceptable obscenity statute should be left to the legislature. We agree that the statute is unconstitutionally overbroad and we decline to construe the statute to bring it within constitutional limits.

Sec. 944.21(1)(a), Stats. provides:

"944.21. Lewd, Obscene Or Indecent Matter, Pictures And Performances. (1) Whoever intentionally does any of the following is guilty of a Class D. felony:

"(a) Imports, prints, advertises, sells, has in his possession for sale, or publishes, exhibits, or transfers commercially any lewd, obscene or indecent written matter, picture, sound recording, or film; or . . ."

This statute is facially vague and overbroad and has survived constitutional scrutiny only through repeated saving judicial interpretations. 5 5 As it turns out, one of our attempts to save the statute by judicial interpretation is itself constitutionally deficient. Thus, we begin by acknowledging the constitutional...

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