United States v. Hunt, 73-3165.

• Decision Date: 01 July 1974
• Docket Number: No. 73-3165.,73-3165.
• Citation: 496 F.2d 888
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnny Miles HUNT and Baron Raymon Kolb, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

496 F.2d 888 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Johnny Miles HUNT and Baron Raymon Kolb, Defendants-Appellants.

No. 73-3165.

United States Court of Appeals, Fifth Circuit.

July 1, 1974.

COPYRIGHT MATERIAL OMITTED

J. Mack Ausburn, San Antonio, Tex., for defendants-appellants.

William S. Sessions, U. S. Atty., San Antonio, Tex., Jeremiah Handy, Ralph E. Harris, Asst. U. S. Attys., El Paso, Tex., Robert P. Trout, Atty., Dept. of Justice, Crim. Div., Government Regulations Section, Washington, D. C., for plaintiff-appellee.

Before BELL, SIMPSON and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

Defendants Johnny Miles Hunt and Baron Raymon Kolb were convicted for receiving in interstate commerce obscene publications in violation of 18 U.S.C. § 1462.¹ On appeal, defendants argue that the allegedly obscene publications were obtained as a result of an unlawful search and seizure and that the evidence introduced at trial does not establish the requisite scienter to support their convictions.² Concluding that the publications underlying defendants' convictions were unlawfully seized by government agents, we reverse.

In the summer of 1971, Special Agent Robert Bishop of the Federal Bureau of Investigation began investigating the interstate transportation of obscene materials into the El Paso, Texas area. In meetings with Sgt. Genaro C. Oliveri, a Texas police officer, and a person from the United States Attorney's office, Bishop viewed copies of three different magazines obtained from three book stores, namely, the Erotique, the Eros, and the Place. Bishop examined the contents of these magazines and later testified that the magazines contained pictures and textual descriptions of various sexual activities between persons and between animals and persons. His investigation also revealed that these book stores were operated by defendant Hunt and Paul Bik Hogervorst, Jr.,³ and that both of these persons had been arrested previously for the sale of obscene literature. Furthermore, he learned that these book stores received shipments of books from various California publishing companies known to print and distribute obscene literature, one of which was All Star Distributors of Hollywood.

In the midst of Bishop's investigation, law enforcement officers of the State of Texas searched under the authority of three warrants all three book stores and confiscated the entire stock of each. Bishop appeared at the Erotique just as the last of the materials were being boxed and taken away, but he did not examine any materials while he was there. The day after the search, he went to the El Paso City Jail where the confiscated materials were stored and there examined the contents of some of the publications.

On August 20, 1971, about a month after he examined the confiscated materials in the El Paso Jail, Bishop learned that six boxes addressed to defendant Kolb, in care of Eros, from All Star Distributors were at a local shipping firm. The next day Bishop went to the shipping agency and examined the boxes and the shipping documents. He then executed an affidavit in support of a search warrant and appeared before a federal magistrate with an order to show cause why the warrant should not issue against the six boxes. Relying only on the information in the affidavit and Bishop's testimony to the same effect, the magistrate issued the show cause order and the warrant, which specifically provided that it was not to be executed unless the officer was convinced that defendants would not comply with the show cause order. Bishop, armed with the warrant and show cause order, returned to the shipping agency and waited for someone to pick up the boxes.

Kolb arrived the following Monday, August 23, 1971, claimed the six boxes and began loading them into the back of his pickup. After two boxes were in the truck, Bishop and a fellow law enforcement officer, one Crossman, approached Kolb, Bishop identified himself, read the entire warrant to him and took possession of all six boxes. Bishop testified that, in accordance with the terms of the warrant, he took the boxes because he was afraid that the defendants would not comply with the show cause order. The boxes were delivered to the magistrate unopened.

At the show cause hearing the following day the magistrate rejected defendants' contentions that the boxes were seized within the meaning of the Fourth Amendment when taken by Bishop at the shipping firm. The magistrate insisted that, even though Bishop read the warrant to Kolb and physically took possession of the boxes, a seizure and execution of the warrant did not take place until after probable cause and probable obscenity were established at the hearing. The confiscation by Bishop the previous day, according to the magistrate, was merely a temporary detention of the evidence in order to insure its presentation to a judicial officer. When the boxes were opened and the contents examined, the magistrate concluded that the materials were obscene.

Prior to trial, defendants moved to suppress the publications, contending that Bishop's taking possession of the boxes when Kolb attempted to pick them up at the shipping firm was a seizure within the Fourth Amendment unsupported by probable cause. The trial court concluded that the initial confiscation of the boxes to insure that the evidence was presented to a magistrate was reasonable under the circumstances of this case. Since the subsequent hearing before the magistrate established probable cause to open the boxes, the initial taking of the boxes did not violate defendants' rights. Accordingly, the motion to suppress was denied, and the defendants thereafter were found guilty of transporting pornography in interstate commerce.

The first question is whether Bishop's taking physical possession of the six boxes at the shipping firm was a seizure within the meaning of the Fourth Amendment. The government argued, and the magistrate and district court agreed, that this confiscation was not a seizure, but merely a temporary detention of the evidence required under the circumstances of this case to insure that the evidence was presented to a magistrate. Since the warrant specifically authorized such a procedure,⁴ the government contends that Bishop's so-called temporary detention of the evidence was not a violation of defendants' Fourth Amendment rights. The essence of the government's argument is that it is constitutionally permitted to seize property and establish probable cause afterwards to justify the seizure. But the cases cited by the government⁵ do not stand for such a broad proposition, and we decline to adopt that position now.

While it is true that many courts have utilized the show cause procedures in obscenity cases to be sure that citizens are afforded full First Amendment protections, implementation of such a procedure does not authorize a violation of the Constitution. Law enforcement officials cannot seize a person's property unless the seizure is based on probable cause. Simply because the magistrate says that this was not an unlawful seizure proscribed by the Fourth Amendment does not make it so. Bishop and Crossman, without Kolb's consent, removed two of the six boxes from the back of Kolb's pickup and confiscated the other four boxes as Kolb was attempting to load them. We believe that this taking, whether it be temporary or otherwise, is a seizure within the terms of the Fourth Amendment. No doubt there is a possibility that the defendants would not comply with the magistrate's show cause order, or that the defendants might tamper with, or destroy, the evidence. But a court has ample authority to issue restraining orders to adequately insure that nothing happens to the evidence and to require that defendants abide by the show cause order. Demich, Inc. v. Ferdon, 426 F.2d 643 (9th Cir., 1970).

Attempting to validate Bishop's confiscation of the six boxes, the government contends that the detention here in question is similar to that recognized by the Supreme Court in United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). A police officer and postal clerk in Van Leeuwen temporarily detained two packages placed in the mail while investigating authorities discovered enough information to make out probable cause to support the issuance of a search warrant. Justice Douglas, writing for a unanimous court, noted that "the nature and weight of the packages, the fictitious return address, and the British Columbia license plates of respondent who made the mailings . . . certainly justified detention, without a warrant, while an investigation was made." Id. at 252. A search warrant was ultimately issued based on probable cause, the packages "opened, inspected, resealed, and promptly sent on their way." Id. at 250.

In Van Leeuwen, however, the policeman merely removed the suspected parcels from the normal flow of the mails when they were initially deposited and replaced them after inspection in order for them to proceed on to their destination. In the instant case, the boxes were not simply removed from the normal flow of the mails, but were seized after they had reached their destination, were claimed by defendant Kolb and two of the boxes were actually in his physical possession while the remaining four were in the process of being loaded on his truck. It was not until the boxes were actually within the recipient's possession, or at least his control, that the government agents made their move and seized them. This difference, we think, takes the seizure of the six boxes outside the scope of the temporary detention recognized in Van Leeuwen.

Having concluded that the government agents' confiscation of the six boxes at the local shipping terminal was a seizure within the meaning of the Fourth Amendment, we must now determine whether the seizure was based on probable cause. As noted previously, Bishop executed an affidavit in...