United States v. Alexander, 19757.

Citation428 F.2d 1169
Decision Date22 May 1970
Docket NumberNo. 19757.,19757.
PartiesUNITED STATES of America, Appellee, v. Ferris J. ALEXANDER and Edward J. Alexander, Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Keith D. Kennedy, St. Louis Park, Minn., for appellants; Irving R. Brand, Minneapolis, Minn., on the brief.

J. Earl Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Robert G. Renner, U. S. Atty., Minneapolis, Minn., on the brief.

Before MATTHES, GIBSON and LAY, Circuit Judges.

MATTHES, Circuit Judge.

This appeal comes to us from an order of the United States District Court for the District of Minnesota (the Honorable Gunnar H. Nordbye) denying appellants' motion for the suppression of evidence seized pursuant to three search warrants issued and executed on February 8, 1969, in Minneapolis, Minnesota. The materials seized consisted substantially of booklets and films alleged to be obscene under 18 U.S.C. § 1462.1 Of the six grounds for suppression presented to the district court, three are raised for our consideration: (1) whether under the facts of this case it was necessary for the magistrate to hold an adversary hearing to determine whether the matter was obscene prior to issuing the warrant for its seizure; (2) whether the search warrants were illegally executed by the seizure of property not described therein; (3) whether there was probable cause for the issuance of the search warrants.

No serious disagreement exists as to the relevant facts. Eight footlockers were shipped from New York City to Cloister House Gifts, 8th Floor Edison Building, 417 Hennepin Avenue, Minneapolis, Minnesota. During handling at John F. Kennedy Airport in New York, two lockers were broken open and their contents exposed. Upon examination, the films and booklets contained therein were deemed by the examiner to be obscene. Pursuant to tariff regulations, the remaining six lockers were examined and found to contain similar material. One reel of film in each locker was marked for identification purposes and several of the booklets were initialed. One copy of film and one magazine were forwarded along with information as to the material examined and its destination to agents of the F.B.I. in Minneapolis.

When the shipment arrived in Minneapolis on February 8, 1969, a local F.B.I. agent accompanied its transport to the Edison Building. Later that same day the agent appeared before a United States Commissioner and executed an affidavit reciting all of the above information, listing the titles of the films and magazines contained in the lockers, and reciting further that such articles were being concealed on the eighth floor of the Edison Building, 417 Hennepin Avenue, Minneapolis, Minnesota. A short summary describing the contents of the films and magazines was also included in the affidavit. Attached to the affidavit were the film and magazine which had been forwarded to the Minneapolis agents from New York. After reviewing the affidavit and attached materials in an ex parte proceeding, the Commissioner issued a warrant authorizing a search of the eighth floor of the Edison Building. After the first search failed to yield all of the material described in the warrant, two subsequent warrants were issued authorizing the search of the third floor of the Edison Building and the Economy Book Store located in an adjacent building. Affidavits in support of these latter two warrants were, save the last two paragraphs of each, identical to the affidavit in support of the first warrant.

The search of the third floor produced no evidence and is not now in dispute. However, the first and third searches resulted in the seizure of nearly 1,700 reels of 29 different film titles and 266 copies of 8 different magazines and booklets.2 Only 6 of the 29 film titles seized were described in the warrant.

Appellants immediately moved under Rule 41(e) Fed.R.Crim.P. for the suppression of all material seized. A hearing was held on February 24, 1969, and the motion was denied on April 25, 1969. In denying the motion, the district court found probable cause for the issuance of the warrant and no infirmity in its execution. Under the facts of this case, the court held that a prior adversary hearing was unnecessary. It reasoned that the material seized was obviously hard-core-pornography, handled furtively, and without currency in the daily lives of the American people. In view of these circumstances, a prior adversary hearing would unduly handicap criminal investigation and prosecution and was unnecessary to protect the public's right to free and open access to non-obscene expression.

Prior to reaching the substantial questions raised, we first consider whether we have jurisdiction under 28 U.S.C. § 1291, which limits our appellate jurisdiction to appeals from "final decisions of the district courts." The crucial consideration in deciding whether an order denying or granting a motion for suppression or return of illegally seized evidence is appealable is whether the motion and order were independent of any criminal proceeding in esse. DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (1962); Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957); Smith v. United States, 377 F.2d 739 (3d Cir. 1967); Selinger v. Bigler, 377 F.2d 542 (9th Cir.), cert. denied, 389 U. S. 904, 88 S.Ct. 212, 19 L.Ed.2d 218 (1967); Goodman v. United States, 369 F.2d 166 (9th Cir. 1966); Gottone v. United States, 345 F.2d 165 (10th Cir.), cert. denied, 382 U.S. 901, 86 S.Ct. 234, 15 L.Ed.2d 155 (1965); United States v. Koenig, 290 F.2d 166 (5th Cir. 1961), aff'd, DiBella v. United States, supra.3 When the order rendered on the motion is independent of any criminal prosecution against the movant it is considered "final" within the meaning of § 1291. Id.

Appellants have been neither arrested nor arraigned. Neither does the record show that they are under indictment or information for the commission of any crime. In short, the order denying their claim for relief from the alleged illegal search and seizure was independent of a criminal prosecution in esse. Accordingly, we believe that we have jurisdiction to hear the appeal.

I. THE ADVERSARY HEARING

We begin our inquiry into this issue by consideration of A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964) (hereinafter Books). There, the Kansas Attorney General, pursuant to statute, obtained an order directing seizure of copies of certain books from a local bookstore. The order authorized seizure of 59 titles and prior to its issuance the district judge, in a 45 minute ex parte proceeding, viewed seven representative titles of the books to be seized. Acting under the order, the sheriff seized all copies of 31 of the 59 titles — 1,715 books. Thereafter a hearing was held and all 31 titles were declared obscene and all copies were ordered destroyed. Because the procedure authorizing the seizure of the books did not afford the bookseller an adversary hearing on the question of obscenity of the books prior to the issuance of the order, the Court found it to be constitutionally deficient. Referring to Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L. Ed.2d 1127 (1961) and Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957), the Court reasoned that absent an adversary hearing a substantial threat existed that the right of non-obscene publications to unobstructed circulation would be impinged through the massive seizures of material deemed obscene solely on the basis of an ex parte hearing. Nor, because of the fine line between protected and unprotected speech, could the seizures to be saved by applying principles developed for seizure of contraband. And, the fact that an adversary hearing had been held after the seizures and the items seized declared to be obscene did not cure the procedural error in failing to hold the hearing prior to the search.4

Recent applications of Books to varying factual settings are many and not entirely consistent. In some instances federal district courts have validated searches instituted pursuant to warrants issued without benefit of an adversary hearing on the question of obscenity. In Bazzell v. Gibbens, 306 F.Supp. 1057 (E.D.La.1969), Chief Judge West reasoned that whether or not such a hearing is required depended upon the nature and purpose of the seizure; if made for the purpose of destroying the thing seized and for the purpose of preventing the dissemination of the articles seized then an adversary hearing prior to seizure is mandated to prevent running afoul of the First Amendment guarantee to the right of freedom of expression. The court concluded, however, that where a single copy of a film is seized for the sole purpose of preserving it for evidence in a criminal action, such a seizure does not violate the First Amendment. Accord, Rage Books, Inc. v. Leary, 301 F.Supp. 546 (S.D.N.Y. 1969). A second exception has been carved out for materials which are dealt with furtively and which have little currency in our daily lives. In such instances, it is said that the public's right to free access to non-obscene materials is not unduly threatened by the absence of an adversary hearing. Judge Nordbye adopted this rationale. See also United States v. Pryba, 312 F.Supp. 466 (D.D.C. April 2, 1970).

Several courts have held, on the basis of Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968),5 that a prior adversary hearing is unnecessary for the seizure of films, as opposed to books, provided suggested procedural standards are satisfied. E. g., Entertainment Ventures, Inc. v. Brewer, 306 F.Supp. 802, 812 (M.D.Ala. 1969); Merritt v. Lewis, 309 F.Supp. 1254 (E.D.Cal.1970). In at least one case Books has been narrowly distinguished, United States v. Wild, 422 F.2d 34 (2d Cir. 1970) (denial of rehearing), and in another it has been ignored. McGrew...

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