U.S. v. Sherwin, 76-3186
| Decision Date | 21 October 1977 |
| Docket Number | No. 76-3186,76-3186 |
| Citation | 572 F.2d 196 |
| Parties | 3 Media L. Rep. 1556 UNITED STATES of America, Plaintiff-Appellee, v. Richard SHERWIN and Ronald Coryell, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert Eugene Smith, Michael Clutter, Atlanta, Ga., Richard J. Abrams, Sherman Oaks, Cal., argued, for defendants-appellants.
Mark O. Heaney, Asst. U. S. Atty., Los Angeles, Cal., argued, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before WRIGHT and KENNEDY, Circuit Judges, and SCHWARTZ, District judge. *
Sherwin and Coryell were convicted of seven counts of interstate shipment of obscene materials for sale or distribution in violation of 18 U.S.C. §§ 1462 & 1465. 1 Sherwin was also convicted of conspiracy to use a common carrier for interstate transportation of obscene matter. 2
Coryell shipped magazines and playing cards to Sherwin, as Superhawk Industries, in Van Nuys, California. When the consignment arrived and was unloaded, FBI agents who had known the shipment was en route obtained search warrants and searched two Superhawk locations. Among the items seized was a variety of sexually explicit erotica.
At trial Sherwin moved to suppress certain evidence seized, alleging that the search warrants were issued without probable cause and that some seized items were not described in the warrants. The motion was denied.
Over defense objection, the district court instructed the jury that the scienter required on the part of the defendants was only knowledge of the "sexual orientation" of the materials shipped.
On appeal two arguments are made: (1) that the court erred in denying the motion to suppress, and (2) that it erred in instructing the jury on the issue of scienter. We affirm in part and reverse in part.
Appellants contend that the affidavits relied on by the magistrate in issuing the search warrants were insufficient to provide probable cause to believe that any crime was being committed because they gave no reason to believe that the materials shipped to Van Nuys were obscene.
This is a sensitive area. More than once the Supreme Court has struck down search warrants based on an officer's conclusory allegation that, after viewing the materials, he found them to be obscene. E. g., Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); Lee Art Theater v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968).
In this case, however, the affidavit used to obtain the search warrant contained more than conclusory allegations of obscenity. Specifically, it stated that the coming shipment of explicit magazines, including "Private No. 8," contained color photographs of
completely nude males and females engaging in various sexual activities, including sexual intercourse, cunnilingus, oral copulation and other sexually explicit acts. . . .
The firmly established rule is that the warrant must stand or fall solely on the contents of the affidavit if it is the only matter presented to the issuing magistrate. United States v. Melvin, 419 F.2d 136 (4th Cir. 1969).
The description in the agent's affidavit was sufficient to allow the magistrate to make his own determination of probable cause. The affidavit was more than a mere conclusion on the agent's part. It gave specific facts as to the magazine's contents. 3
According the judicial determination the "great deference" it is due by reviewing courts, Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the issuance of the warrant was proper.
One of the two search warrants under which the agents operated in this case authorized the seizure of a "sexually explicit magazine, entitled 'Private No. 8' " from an address on Burnet Avenue, Van Nuys, California. Although this was the only publication referred to in the search warrant, the agents also seized the following publications at that address:
3 copies of "Private No. 7"
3 copies of "Private No. 11"
3 copies of "Color Climax No. 1"
3 copies of "Color Climax No. 2"
3 copies of "Color Climax No. 3"
3 copies of "Color Climax No. 4"
copies of "Homosexual Boys."
"Private No. 8" and "Color Climax No. 3 and No. 4" were the bases of the counts on which appellants were later convicted and sentenced.
The government argues that seizure of the magazines not identified in the search warrant was proper under either the "nexus" or "plain view" exceptions to the general Fourth Amendment prohibition against unreasonable searches and seizures. Both exceptions have been recognized in this circuit. Louie v. United States, 426 F.2d 1398 (9th Cir.), cert. denied, 400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158 (1970); United States v. Damitz, 495 F.2d 50 (9th Cir. 1974).
Appellants argue, however, that these exceptions to the warrant requirement are not applicable here when the materials seized are arguably protected by the First Amendment. We agree.
The Supreme Court cases of Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), Lee Art Theater v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), and Marcus v. Search Warrant of Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), lead us to this conclusion. In those cases the Court struck down the seizure of films and books because there was no step in the procedures of each case prior to the seizures designed to focus searchingly on the question of obscenity.
There were two fatal flaws in the procedure disapproved in Marcus v. Search Warrant, supra, for example. Not only were the search warrants issued on the conclusory opinion of a police officer that the publications sought to be seized were obscene but, in addition, the broad authority given the police officer under the warrants to seize "obscene . . . publications" impermissibly allowed each officer to make an ad hoc determination of obscenity at the site of the seizure. 367 U.S. at 731-32, 81 S.Ct. 1708.
The Court noted that the warrants in Marcus posed problems not "raised by the warrants to seize 'gambling implements' and 'all intoxicating liquors'." Id. at 731, 81 S.Ct. at 1716. This thought was later echoed in Roaden where the Court stated:
The seizure of instruments of a crime, such as a pistol or a knife, or "contraband or stolen goods or objects dangerous in themselves," . . . are to be distinguished from quantities of books and movie films when a court appraises the reasonableness of the seizure under Fourth . . . Amendment standards.
413 U.S. at 502, 93 S.Ct. at 2800.
In Roaden it was not enough that a copy of the allegedly obscene film was seized incident to the arrest of the theater manager. As the Court noted:
The Fourth Amendment proscription against "unreasonable . . . seizures" . . ., must not be read in a vacuum. A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material.
As one commentator stated about Roaden : "The Court assumed that with respect to garden variety contraband, such a seizure . . . (T)he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. . . . (T)he separation of legitimate from illegitimate speech calls for . . . sensitive tools . . ..
would have been valid." 4 We are not dealing with garden variety contraband in this case, however. Because of the First Amendment, the seizure of all publications must meet higher procedural standards than normal. As noted by the Court
Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, quoted in Marcus, 367 U.S. at 731, 81 S.Ct. 1708.
The Court reiterated its point years later in Roaden :
As we stated in Stanford v. Texas (379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965)):
413 U.S. at 504, 93 S.Ct. at 2801 (citations omitted).
The importance of protecting First Amendment freedoms precludes police officers from making ad hoc determinations at the scene as to which materials are probably obscene. See United States v. Kelly, 529 F.2d 1365 (8th Cir. 1976). Neither the "nexus" or "plain view" doctrines, therefore, provide a justification for the seizure of publications not identified in the warrant. The use of these doctrines implies, a fortiori, that the officer, although legally on the premises to search, made the initial determination of probable obscenity rather than having it made by a magistrate or other judicial officer. The Supreme Court cases forbid this.
A preferable and less intrusive method would be for the officers to seal the area to prevent destruction of any publications while they obtained another warrant. This procedure has been used and approved in the context of an obscenity investigation. 5
The fact that the agents took only samples and did not confiscate all cartons of the magazines does not solve the underlying problem that a magistrate failed to "focus searchingly on the question of obscenity" prior to the seizure of all the magazine sample copies but "Private No. 8." As stated by the Eighth Circuit when responding to the government contention that the seizure was reasonable because only sample copies were taken:
We find this distinction untenable, however, and inconsistent with the thrust of recent Supreme Court decisions. See Roaden v. Kentucky, 413 U.S. 496, 501-06 (93...
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