Walthall v. State

• Decision Date: 16 January 1980
• Docket Number: No. 56648,No. 3,56648,3
• Citation: 594 S.W.2d 74,32 A.L.R.4th 364
• Parties: James Craig WALTHALL, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 74

594 S.W.2d 74

32 A.L.R.4th 364

James Craig WALTHALL, Appellant, v. The STATE of Texas, Appellee.

No. 56648.

Court of Criminal Appeals of Texas, Panel No. 3.

Jan. 16, 1980.

Rehearing Denied Feb. 27, 1980.

Malcolm Dade, Dallas, for appellant.

Tim Curry, Dist. Atty., Marvin Collins, Stephen R. Chaney, Joe Shannon and Candyce W. Howell, Asst. Dist. Atty's., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

DALLY, Judge.

This is an appeal from a conviction for commercially exhibiting obscene material. Punishment was assessed by the jury at imprisonment for 180 days and a fine of $1,000.

Appellant attacks the constitutionality of the warrant authorizing the search of the Finne Arts Theatre, challenges the admissibility of evidence seized during the search of the theatre and incident to his arrest, and contends that the information is deficient. Appellant further complains that the transcription of the court reporter's notes is incomplete, the trial court's charge was erroneous, and the prosecutor's argument was improper.

On the morning of August 18, 1976, Fort Worth police officer J. V. Carter paid an admission charge of $6.00 and entered the Finne Arts Theatre. He viewed a film which depicted various sex acts, then returned to his office and prepared an affidavit describing the movie scene by scene, in detail. A search warrant was issued on the basis of the affidavit. That evening Carter, Officer Thomas Young, Sgt. E. G. Paulson, Investigator Jim Kuykendall, and Investigator Don Evans went to the theatre to execute the search warrant. Young paid the admission fee with a marked $20 bill and entered the theatre to view the film, while the others maintained surveillance of the theatre.

Appellant arrived and entered the theatre. Young testified that appellant and the theatre's ticket taker walked around the edge of the theatre adjusting and inspecting air conditioning vents. Appellant then left the theatre. Kuykendall testified that upon leaving the theatre appellant went to a pickup parked nearby, retrieved a brown paper sack, and began walking back to the theatre. Kuykendall and Evans approached appellant and displayed their badges, whereupon appellant stepped back and said, "I have a gun, I have a gun." The officers searched appellant, found a handgun, and arrested appellant. A search of the paper sack revealed three reels of sixteen millimeter film, business receipts and records for the theatre, and $870 in cash, including the marked bill that Young had used to pay his admission fee.

The officers then executed the search warrant and searched the theatre. They seized among other things the film which was described in the affidavit, business receipts and records, and several posters which were on the walls of the theatre. All these items were admitted into evidence at trial.

The search warrant in this case authorizes the seizure of:

"1) a motion picture film as described in the affidavit attached hereto and incorporated herein,

"2) all materials kept or prepared for commercial distribution or exhibition which explicitly depict any contact between any part of the genitals of one person and the mouth or anus of another person; any contact between the female sex organ and the male sex organ; any contact between a person's mouth or genitals and the anus or genitals of an animal or fowl; or patently offensive representations of masturbation or excretory functions,

"3) all items of personal property commonly used in the commission of a criminal offense and in particular the offense of commercial exhibition of obscene material,

"4) all implements or instruments used in the commission of a crime."

Appellant contends that the warrant is invalid because the affidavit does not provide the magistrate with probable cause to order the seizure of any items referred to in the second, third, and fourth clauses of the warrant. Appellant also contends that the warrant is a general warrant in contravention of the Fourth Amendment to the Constitution of the United States.

Before an allegedly obscene book, film, or other item within the ambit of the First Amendment may be seized by the police, there must be a judicial determination that the material in question is probably obscene. Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1798, 6 L.Ed.2d 1127 (1961). In the instant case, only the single film viewed by Carter and described in detail by his affidavit had been determined by the magistrate to be probably obscene. While Carter's affidavit was sufficient to justify the issuance of a warrant to search for and seize the particular film described therein, United States v. Pryba, 163 U.S.App.D.C. 389, 502 F.2d 391 (D.C. Cir. 1974); United States v. Sherpix, 168 U.S.App.D.C. 121, 512 F.2d 1361 (D.C. Cir. 1975), it did not justify the issuance of a warrant for the seizure of any film or other material that had not been subject to prior judicial scrutiny. See Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979). There was, therefore, no probable cause to support the second, third, and fourth clauses of the search warrant.

In addition to the absence of probable cause, the third and fourth classes of the warrant are unconstitutionally general. The Fourth Amendment to the United States Constitution and Art. I, Sec. 9, of the Texas Constitution prohibit general warrants which fail to particularly describe the property to be seized and allow "general, exploratory rummaging in a person's belongings." Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627 (1976), quoting from Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Gonzales v. State, 477 S.W.2d 226 (Tex.Cr.App.1979). As stated by the Court in Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927):

"The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant."

And see Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965).

The requirements for a sufficiently particular description can vary according to the thing being described. Those things subject to First Amendment concerns, including allegedly obscene publications and films, must be described with greater particularity than other things. Marcus v. Search Warrant, supra; Lo-Ji Sales, Inc. v. New York, supra. Cf. Gonzales v. State, supra.

The third clause of the instant warrant authorizes the seizure of "all items of personal property commonly used in the commission of a criminal offense . . ." The fourth clause authorizes the seizure of "all implements or instruments used in the commission of a crime." Language of greater generality is difficult to imagine. These clauses clearly authorize the general, exploratory rummaging which is properly prohibited by the constitutions of this State and of the United States.

Having concluded that the second, third, and fourth clauses of the search warrant are constitutionally defective, we must address the question of whether this defect renders the warrant invalid as a whole. This appears to be a question of first impression in this State.

In Aday v. Superior Court of Alameda County, 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47 (1961), the Supreme Court of California held that portions of a search warrant had unlawfully authorized the seizure of privileged material. The court went on to hold that despite this defect the warrant was not invalid as a whole:

"Although the warrant was defective in the respects noted, it does not follow that it was invalid as a whole. Such a conclusion would mean that the seizure of certain articles, even though proper if viewed separately, must be condemned merely because the warrant was defective with respect to other articles. The invalid portions of the warrant are severable from the authorization relating to the named books, which formed the principal basis of the charge of obscenity. The search for and seizure of these books, if otherwise valid, were not rendered illegal by the defects concerning other articles." 55 Cal.2d at 789, 13 Cal.Rptr. 420, 362 P.2d at 52.

United States v. Ketterman, 276 A.2d 243 (D.C.App.1971), involved a search warrant similar to the warrant in the instant case. The warrant authorized the search for and seizure of a gun and narcotics which were particularly described, but also contained a clause which, in effect, authorized a general search. Citing Aday v. Superior Court, supra, with approval, the court held that the description of the gun and narcotics was sufficiently particular to make valid the entry of the police to execute the warrant and that the seizure of the gun and narcotics was lawful.

The rule of severability enunciated in Aday v. Superior Court, supra, and followed in United States v. Ketterman, supra, has been accepted and followed in most courts which have been faced with the issue, and has been approved by a leading commentator. See Butler v. State, 130 Ga.App. 469, 203 S.E.2d 558 (1973); People v. Mangialino, 75 Misc.2d 698, 348 N.Y.S.2d 327 (1973); State v. Johnson, 160 Conn. 28, 273 A.2d 702 (1970); State v. Taylor, 28 Conn.Sup. 19, 246 A.2d 898 (1968); 2 La Fave, Search and Seizure, Sec. 4.6(F) (1978). Contra, United States v. Burch, 432 F.Supp. 961 (D.Del.1977).

We are convinced that Aday v. Superior Court, supra, states the proper rule. Accordingly, we hold that while the second, third, and fourth clauses of the search warrant in this case were constitutionally defective, the search for and seizure of the property described in the first clause were not rendered invalid by this...