United States v. Peisner

• Citation: 311 F.2d 94
• Decision Date: 05 November 1962
• Docket Number: No. 8543.,8543.
• Parties: UNITED STATES of America, Appellee, v. Arthur Abraham PEISNER and Morris Disman, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

311 F.2d 94 (1962)

UNITED STATES of America, Appellee, v. Arthur Abraham PEISNER and Morris Disman, Appellants.

No. 8543.

United States Court of Appeals Fourth Circuit.

Argued June 5, 1962.

Decided November 5, 1962.

COPYRIGHT MATERIAL OMITTED

Joseph J. Lyman, Washington, D. C., for appellants.

J. Edward Davis, Asst. U. S. Atty. (Joseph D. Tydings, U. S. Atty., and Stephen H. Sachs, Asst. U. S. Atty., on brief), for appellee.

Before BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges.

BOREMAN, Circuit Judge.

Arthur Abraham Peisner and Morris Disman were jointly indicted for transporting in interstate commerce, for the purpose of sale and distribution, 1560 paper-bound books containing obscene, lewd and lascivious material, in violation of 18 U.S.C. § 1465 (1958). The case was removed from the District Court in the State of New Jersey, where defendants were arrested and indicted, to the District of Maryland under Rule 21(b), Federal Rules of Criminal Procedure. Defendants were tried and convicted by the District Court sitting without a jury. We think the judgments of conviction cannot be upheld.

Challenged on appeal is the constitutional validity of a search of Peisner's automobile in the course of which search evidence on which the convictions are based was discovered and seized. Also challenged is the legality of the defendants' arrests following the search.¹ The search and arrests were without warrants. The District Court's opinion denying defendants' pretrial motion to suppress the seized evidence is reported at 198 F.Supp. 67. Since defense counsel stated at the bar of this court that the District Judge's finding that the transported materials are obscene is not challenged, we proceed on the assumption that the materials found in Peisner's automobile are obscene, lewd and lascivious within the meaning of the statute.

For many months prior to the actual arrest of these defendants, Peisner had been under investigation by the Federal Bureau of Investigation as a suspected purveyor of obscene literature. During the latter part of 1957 the Bureau received a complaint that Peisner possessed and handled an obscene motion picture film. In early 1958 Peisner was interviewed by the FBI with respect to this complaint and, a short time thereafter, the Bureau determined as a result of its investigation that Peisner was connected with certain individuals (David Lerner, his brother Bernard,² and Anthony Carbo) in the manufacture and sale of obscene materials.

On May 31, 1958, Deputy Chief Blick of the Metropolitan Police Department, Washington, D. C., investigated a complaint that obscene literature had been found in the hallways of a certain building in Washington. He visited the building and learned in the course of his investigation that during that day a printing press had been in operation on the premises. It developed that the offices examined by Blick were leased to Peisner though they were apparently unoccupied at the time of the search. Blick found in Peisner's vacated quarters some scrap pages on which were printed obscene passages, and a set of printing plates for a book entitled "Cosimo's Wife." Copies of this book, referred to by the District Court as "Kosimo's Wife," were later found with other paper-bound books in Peisner's car on November 1, 1958, all of which were thereafter determined at trial by the District Court to be obscene. Blick's investigation further revealed that before his arrival at Peisner's offices, a printing press had been removed by two men who were identified from photographs by the building's elevator operator as Peisner and David Lerner. All of this information, the plates and scrap pages were turned over to the FBI.

In late October 1958, the FBI received information from an informant, who was considered by the agents to be reliable because of previous "tips" which had proved to be accurate, that Peisner was planning to transport some obscene materials from his home in Silver Spring, Maryland, to New York City for sale in the latter place and that the trip was to be made on the week end of October 31, 1958, or the one following. The Government refused defendants' repeated requests that the identity of the informant be disclosed and the District Court held that the Government need not make such disclosure.

Prior to October 31, FBI agents had been making "spot checks" of Peisner's house but these were discontinued on Saturday, November 1, and the house was placed under constant surveillance. On that day the watching agent saw the defendants, Peisner and Disman, load certain packages or cartons wrapped in brown paper into Peisner's 1954 green Buick, which was then parked in front of Peisner's residence. After nine such packages had been placed in the car, David Lerner arrived by automobile at the Peisner house and assisted defendants in loading the remainder of the packages into the Buick. Shortly after two o'clock in the afternoon, Peisner and Disman left the former's residence traveling toward Baltimore in the Buick. Their first stop, entirely innocent in character, was at Catonsville, Maryland. After leaving that area, they drove into Baltimore City and were seen to enter and later leave a bookstore there.³ In 1957 or 1958 the proprietor of this store had been arrested for, and one of the clerks had been convicted of, purveying obscene literature and pictures, which facts were known to the FBI. At about seven o'clock in the evening the defendants, who had been driving north on Route 40, stopped at Aberdeen, Maryland, for dinner and at that time an FBI agent observed that the packages were still in the Buick. Upon resuming travel, rather than continuing on Route 40, the main highway, the Peisner vehicle followed a course of unmarked side roads. The manner of driving supports the strong inference that they were attempting to elude anyone who might be following. For about half an hour the Buick, after sudden increases in speed, would suddenly slow down and numerous "U" turns were made. This unusual and erratic vehicular movement forced the FBI automobile which was following to drop farther and farther behind until surveillance of the Buick was no longer possible. The FBI later picked up the trail when the Peisner vehicle re-entered Route 40 a considerable distance north of the place where it left the highway. Defendants then proceeded on Route 40 through Delaware, across the Delaware Memorial Bridge and onto the New Jersey Turnpike where they were soon stopped by a member of the New Jersey Turnpike Police. The officer approached the car and asked Peisner, who was driving, for his driver's license; simultaneously, the officer flashed the beam of his flashlight into the car and noticed several wrapped packages on the rear seat and floor and a few loose books on top of the packages. The officer testified that the packages and loose books were seen from outside the car. Upon request, defendants got out and moved to the rear of the automobile, whereupon the officer reached into the car and removed a book. He then and there read briefly from the book and informed defendants that they were under arrest for possession of obscene literature. Defendants were taken to a nearby police barracks where they were later taken into custody by the FBI.

It was established that the FBI office in Newark, New Jersey, had been advised by the FBI office in Baltimore of Peisner's identity and that of his car, as well as the reason of the Bureau for its interest in him. The Newark office was advised also of the spot checks of the Peisner residence and the Baltimore agents' belief that Peisner was contemplating the interstate transportation of obscene literature during the week end of October 31, 1958. On November 1 the Baltimore office notified the Newark office that Peisner was proceeding in a 1954 green Buick toward New Jersey and that it had reason to believe that he was transporting obscene material. The Newark office relayed this information to the New Jersey State Police. There is testimony by an agent in the Baltimore office that he instructed the Newark office to request the New Jersey police to arrest Peisner and his companion on the Turnpike, but apparently this instruction and request did not reach the trooper who actually made the arrest. This officer testified that he had been told to be on the lookout for a car such as Peisner's containing obscene materials, but in his recital of the instructions given him he made no reference to a request to make an arrest. It was shown that the Turnpike authorities view with disfavor the stopping of automobiles on the Turnpike by anyone other than uniformed members of the Turnpike police force who travel in marked cars. This explains the FBI request that the New Jersey police make the arrests. Though the trooper who actually made the arrests testified that the Peisner vehicle was being operated in an unlawful manner at the time it was stopped, no traffic violation was cited as the reason for the arrests, and it appears that the search, seizure, and arrests were made, at least in substantial part, because of the information furnished by the FBI. In fact, the arresting officer admitted that, acting on the information which he had, he stopped several other vehicles prior to stopping the Peisner car.

All law enforcement officials should keep constantly in mind the familiar words of the Fourth Amendment, not only that innocent persons may be protected, but also to make certain that persons who are clearly guilty of crime may be convicted and the convictions upheld. Those words which overzealous officers, no doubt acting in good faith, too often ignore or forget, are as follows:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place

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