State v. Welke

• Decision Date: 01 March 1974
• Docket Number: No. 43554,43554
• Citation: 216 N.W.2d 641,298 Minn. 402
• Parties: STATE of Minnesota, Respondent, v. Joseph WELKE, Appellant.
• Court: Minnesota Supreme Court

Page 641

216 N.W.2d 641

298 Minn. 402

STATE of Minnesota, Respondent, v. Joseph WELKE, Appellant.

No. 43554.

Supreme Court of Minnesota.

March 1, 1974.

Rehearing Denied April 24, 1974.

Syllabus by the Court

1. Motions for the suppression and return of evidence on the ground of unlawful search and seizure were properly denied where certain materials were obtained by purchase, not seizure, and where defendant did not have standing to contest the validity of a later search.

2. The word 'obscene' is a word of constitutional meaning and, as used in an ordinance or statute, is construed to embrace materials which are patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, and patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

3. Defendant's conviction of selling obscene materials is reversed on due process grounds since, in the absence of this specific definition of 'obscene' at the time of his arrest, he did not have fair notice of what conduct and materials were prohibited by the Minneapolis ordinance under which he was convicted.

Robert J. Milavetz, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Keith M. Stidd, City Atty., Edward C. Vavreck, Asst. City Atty., Minneapolis, for respondent.

Considered and decided by the court en banc.

PETERSON, Justice.

Defendant was convicted of violating the Minneapolis obscenity ordinance, Minneapolis Code of Ordinances, § 870.080, by exhibiting and selling a magazine entitled 'Kronus.' ¹ Two of the issues raised by defendant on this appeal merit consideration: (1) Whether the evidence, including 'Kronus,' should have been suppressed as impermissibly obtained by the arresting police officers and (2), more importantly, whether the conviction constitutionally may stand under any construction of the obscenity ordinance.

On the evening of January 29, 1970, two plainclothes police officers entered the Discount Book Store on Hennepin Avenue in downtown Minneapolis in which defendant, Joseph A. Welke, was employed as a clerk. After browsing through the store for several minutes, the officers selected three magazines, 'Kronus,' 'Candy Boxes,' and 'Candida,' the covers of which displayed nude women. The officers brought the magazines to a checkout counter where Welke was standing, and after some conversation with him, the officers purchased the magazines with 'buy money' which their superiors had provided.

Having made their purchases, the officers left the store, conferred outside briefly with a third officer, and then reentered the bookstore with several other police officers. Welke was then placed under arrest. The officers thereupon conducted a search of the bookstore, which lasted approximately 2 1/2 hours, during which they retrieved the 'buy money' and, in addition seized a large number of other magazines from the store. The officers did not have a search warrant.

1. Defendant made a pretrial motion for the suppression of evidence obtained by the search of the bookstore. At the conclusion of the pretrial Rasmussen hearing, the court stated that no ruling on the suppression motion was necessary 'because there is no evidence sought to be introduced by search and seizure or by custodial interrogation.' The state, at trial, introduced only the three magazines which had been purchased by the police officers and did not attempt to introduce any of the other materials seized. Although defendant was charged only with having sold 'Kronus,' no objection was made to the introduction of the other two magazines purchased, except to reassert that they were products of an unlawful search and seizure.

Defendant argues that the sale of the three magazines to the police officers was not a bona fide sale and that the illegality of the subsequent search of the bookstore requires the suppression and return of all materials, including the three magazines purchased. Whatever the subjective intent of the two officers may have been, however, the transaction by which they obtained three magazines in exchange for money cannot be considered a search or seizure. Purchases by undercover agents from willing sellers, in places far more private than a bookstore, were held in Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), not to violate the Fourth Amendment.

Defendant additionally made a post-trial motion to order the police officers to return all the materials. The determinative issue here is not whether the warrantless search of the bookstore and the massive seizure of materials which followed defendant's arrest was impermissible, but whether defendant has standing to raise the issue. He was a clerk without any ownership interest in the bookstore and, indeed, is no longer even employed by the store. The police officials of Minneapolis have declared that the materials would be returned to the owners upon their request. Since defendant does not appear to be '(a) person aggrieved by an unlawful search and seizure' within the meaning of Minn.St. 626.21, he had no standing, as the trial court properly ruled, to demand return of the seized materials.

2. The more crucial issue for decision is whether the conviction constitutionally may stand under any construction of the Minneapolis obscenity ordinance, particularly in its application to this defendant. These issues arise for the first time in this state under the new tests of obscenity enunciated by the United States Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and its companion cases. ²

The obscenity ordinance defines the term 'obscene' in the precise language of the constitutional tests formulated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), by providing as follows:

'It is unlawful for any person knowingly to exhibit, sell, print, offer to sell, give away, circulate, publish, distribute, or attempt to distribute any obscene book, magazine, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, motion picture film, play, image, instrument, statute, drawing, or other article which is obscene. 'Obscene' for the purpose of this section is defined as follows: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.' Minneapolis Code of Ordinances, § 870.080.

The obscenity tests of Roth, incorporated in the state obscenity statute as well as the Minneapolis obscenity ordinance, were subsequently made more stringent in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' (commonly known as Fanny Hill) v. Attorney General, 383 U.S. 413, 419, 86 S.Ct. 975, 978, 16 L.Ed.2d 1, 6 (1966) (plurality opinion). That case added, as a third element, that to prove obscenity it must be established the material is 'utterly without redeeming social value.' This added element was thereafter effectively read into our state statute in State v. Carlson, 291 Minn. 368, 192 N.W.2d 421 (1971).

In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and its companion cases, the United States Supreme Court announced the formulation of new constitutional tests for obscenity. Abandoning the Roth-Memoirs tests as unworkable, the court reiterated the proposition that obscene material is not protected by the First Amendment and then enunciated the following standards (413 U.S. 23, 93 S.Ct. 2614, 37 L.Ed.2d 430):

'* * * State statutes designed to regulate obscene materials must be carefully limited. * * * As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

'The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest * * *, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. We do not adopt as a constitutional standard the 'utterly without redeeming social value' test of Memoirs v. Massachusetts, (383 U.S. 413, 419, 86 S.Ct. 975, 978, 16 L.Ed.2d 1, 6) * * *.'

The most significant difference in the new formulation is the requirement that the sexual conduct, the depiction or description of which is prohibited, must be specifically defined by the applicable state law, as written or as authoritatively construed. Although the court declined to propose regulatory schemes, it gave the following examples of what a state statute could define for regulation (413 U.S. 25, 93 S.Ct. 2615, 37 L.Ed.2d 431):

'(b) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

'(b) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.'

The Minneapolis obscenity ordinance manifests a clear legislative intent to proscribe obscenity to the extent consistent with constitutional limitations. ³ 'Obscene ' for purposes of government regulation, is no longer meaningfully defined except in constitutional terms. Its use in an ordinance or statute is therefore susceptible of authoritative judicial construction conformable with the guidelines and authorized regulatory pattern articulated in...