State v. Vollmar

• Decision Date: 08 March 1965
• Docket Number: No. 1,No. 50458,50458,1
• Citation: 389 S.W.2d 20
• Parties: STATE of Missouri, Respondent, v. Ralph Louis VOLLMAR, Appellant
• Court: Missouri Supreme Court

Page 20

389 S.W.2d 20

STATE of Missouri, Respondent, v. Ralph Louis VOLLMAR, Appellant.

No. 50458.

Supreme Court of Missouri, Division No. 1.

March 8, 1965.

Motion for Rehearing or for Transfer to Court En Banc Denied

April 12, 1965.

Thomas F. Eagleton, Atty. Gen., John H. Denman, Asst. Atty. Gen., Jefferson City, for respondent.

Morris A. Shenker, Bernard J. Mellman, Emanuel Shapiro, John L. Boeger, St. Louis, for appellant.

HOLMAN, Judge.

Defendant was charged with and found guilty of the offense of knowingly possessing certain obscene publications with intent to sell and circulate the same and the jury fixed his punishment at a fine of $1,000. See Sec. 563.280, Laws of Mo. 1961, p. 335, and V.A.M.S. He has appealed from the ensuing judgment.

We have jurisdiction of this appeal (although the offense is a misdemeanor) because questions have been presented which involve the construction of certain constitutional provisions. Mo.Const. Art. V, Sec. 3 (1945), V.A.M.S.

The State's evidence will support the following statement of facts: On March 21, 1963, Detective Jimmy Webb and Frederick Fry were members of the liquor and morality section of the vice squad of the St. Louis Police Department. At about 10:30 a. m. on that day they went to the 'House of Publications,' located at 719 Pine Street. After entering the establishment they contacted defendant (who was the store manager) and one of them told defendant that they were 'going to have a stag party, and needed some pictures to get the interest of the males at the party.' Detective Webb also pointed to a particular magazine lying on the counter, 'Sun Fun,' wrapped in cellophane, and said that he wanted it. Defendant then obtained a copy of that magazine from under the counter, opened it, and said, 'This has real nudes in it, and shows everything.' The detectives then looked at the magazine and saw that it contained pictures of nude women which 'showed everything,' and Detective Webb purchased it for $2.00. The officers then identified themselves and placed defendant under arrest. They called in another officer who was waiting on the outside and the three of them searched the store for other similar publications. They seized a number, most of which were in the room in which the business was conducted, although there were a few obtained from the basement.

At the trial the following publications which were seized on the occasion in question were offered and admitted in evidence: 'Sun Fun,' No. 3, one copy; 'SunDeck,' April 1963, 8 copies; 'Nudists' Leisure,' 3 copies; 'Sun and Health,' April 1963, 7 copies; 'Gymnos Sundeck,' No. 124, 7 copies; 'Tidlosa,' No. 5, 5 copies; 'International Nudistour Guide,' Vol. I, No. 2, 3 copies; 'National Nudist,' Vol. I, No. 3, 9 copies. All are magazine-type publications (sometimes herein referred to as books). Four of the publications are 7 X 9 inches and the remainder are 9 X 11 inches in size.

Prior to the admission of these exhibits in evidence, Detective Webb identified them. It was developed in his testimony that each of these publications contained photographs of nude men and women. Detective Fry stated that after defendant was arrested he admitted that he knew what was in the magazine he had sold them. Upon cross-examination of Detective Webb defendant elicited the testimony that there were thousands of books and magazines of various kinds in the store in question. Also, upon cross-examination, Detective Fry stated that he had seen nude pictures and statues at the Art Museum.

It was stipulated at the trial that the jury utilized 25 minutes in its examination of the exhibits.

Defendant offered to produce two witnesses to testify as experts, and when the court ruled that the issue was not a proper matter for expert testimony the defendant made an offer of proof to produce Barney Whippold of the St. Louis Globe-Democrat who would testify that he had been a newspaper reporter for 32 years, had done extensive reading, had taken several courses in literature, and that, based upon his experience and his travels, it was his opinion that the magazines in question would conform to the general community standards of the State of Missouri and were not obscene. A similar offer was made in regard to testimony which it was said would be given by Donald Finke who was a photographer with 22 years' experience. An objection to the proffered testimony was sustained.

Other evidence will be stated in the course of the opinion.

Defendant's first contention is that the court erred in overruling his motion to suppress evidence and in admitting in evidence the publications in question. His reasons for that contention are that '(a) the officers seizing the exhibits had no search warrant and were provided with no guide to the exercise of informed discretion in determining which magazines were obscene and subject to seizure and hence the search and seizure of the exhibits contravened appellant's rights to freedom of speech under Art. I, Sec. 8, Mo.Const.1945, and the First and Fourteenth Amendment to the Federal Constitution; and (b) the search of appellant's establishment was a general exploratory search for evidence and not incidental to the arrest (even if the arrest were valid) and accordingly the search and seizure contravened appellant's right to be free from unreasonable searches and seizures in violation of Art. I, Sec. 15, Mo.Const.1945 and the Fourth and Fourteenth Amendment to the Federal Constitution.'

The evidence adduced on the motion to suppress was substantially the same as that given at the trial with the following additional evidence: There was testimony that on March 12, 1963, Detectives Webb and Fry visited the book store managed by defendant and purchased a magazine, 'Conqueress Club,' and five pictures. This material was submitted to Mr. Freeman, City Counsellor, who advised them that such was obscene. They returned to the store the next day and purchased 'Western Nudist,' Vol. 1. While this publication was not placed in evidence, we think it is reasonable to assume that it was similar to the eight nudist magazines admitted in evidence at the trial. The officers were on night duty at that time so they placed this publication in a safe and, on March 20, when they were again working on the day shift, they took it to Mr. Freeman and also to Mr. Vettori, associate prosecuting attorney, and each of those officials advised them that 'Western Nudist' was obscene. The arrest of defendant and the search of the premises occurred the next day.

It is well established that 'only 'unreasonable searches and seizures' are within the constitutional prohibition. Art. 1, Sec. 15, Const. V.A.M.S.; State v. Watson, 329 Mo. 158, 44 S.W.2d 132; State v. Egan, Mo.App., 272 S.W.2d 719. 'All illegal searches and seizures are 'unreasonable' under the constitutional provisions, while lawful ones are reasonable.'' State v. Cohn, Mo.Sup., 347 S.W.2d 691, 695. And, it is elementary that an officer may make a lawful arrest without a warrant. The general rule is that he may arrest without a warrant any person whom he has reasonable cause to believe has committed a felony and anyone committing a misdemeanor in his presence. State v. Berstein, Mo.Sup., 372 S.W.2d 57; State v. McBride, 327 Mo. 184, 37 S.W.2d 423. And the rule has been liberalized by Sec. 84.090 (all statutory references are to RSMo 1959, V.A.M.S., unless otherwise indicated) in that police officers of the City of St. Louis are authorized to arrest without a warrant any person whom they have reasonable grounds to believe has committed a misdemeanor even though such does not occur in the presence of the officer. State v. Humphrey, 358 Mo. 904, 217 S.W.2d 551.

Assuming, as we hereinafter decide, that 'Sun Fun' was obscene, there can be no doubt but that the arrest in this instance was lawful. The officers had seen that publication in the possession of defendant, who obviously intended to sell it, and, in fact, defendant did sell it to them shortly thereafter. Thus, two offenses under the provisions of Sec. 563.280 had apparently been committed by defendant in the presence of the officers.

It is a settled rule in this state that when a defendant has been lawfully arrested a search may be made of his person and of the premises where he was arrested without the necessity of a search warrant. State v. Carenza, 357 Mo. 1172, 212 S.W.2d 743. And the Supreme Court of the United States has said that 'the right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted.' Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 5, 70 L.Ed. 145. The quoted rule has been approved in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, and Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399.

The statute in question provides that every person who 'knowingly shall * * * have in his possession, with intent to sell or circulate * * * any obscene, lewd, licentious, indecent or lascivious book, pamphlet * * *.' Sec. 563.280. The State, in this instance, has treated the possession of obscene magazines as one offense regardless of the number of different publications involved. It therefore was reasonable for the officers, after arresting defendant, to make a search of the premises under defendant's control in order to obtain publications similar to the one purchased as additional evidence of the offense. We can see no basis for defendant's contention that the search was merely a general exploratory search for evidence of other offenses. The cases cited in that connection involve extensive, unreasonable, and...