IN
THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1968
No. 293
ROBERT
ELI STANLEY, Appellant,
-VS-
THE
STATE OF GEORGIA, Appellee.
Brief for
Appellant on the Merits
WESLEY
R. ASINOF
Counsel for Appellant
3424 First Nat. Bank Bldg.
Atlanta, Georgia 30303
Report of
Opinion
Statement of Jurisdiction
Constitutional Provisions
& Statutes Involved
Questions Presented for
Review
Concise Statement of Case
Summary of Argument
The Argument
1. Constitutionality
of Obscenity Law
2. Search Warrant
Invalid
4. Seizure of Films
Without Prior Adjudication of Obscenity
5. No Evidence of
Prior Knowledge
Conclusion
Austin v.
Ky.
Ga. Code 26-6301
Ga. Laws 1963, p. 78
Gent v. Ark.
Ginzburg v. U. S.
Grosso v. U. S.
Lewis v. U. S.
Mapp v. 0hio
Marchetti v. U.S.
Marcus v. Search Warrants
Redrup v. N. Y.
Roth v. United States
Smith v. Cal.
Speiser v. Randall
U.S. v. Kahriger
1st Amend. U. S. Const.
4th Amend. U. S. Const.
14th Amend. U. S. Const.
28 U.S.C.A. No. 2103
The
opinion of the Georgia
Supreme Court in this case is officially reported in 224 Ga. 259 and
unofficially reported in 161 S.E.2d 309.
CONCISE
STATEMENT OF GROUNDS OF THIS COURT'S JURISDICTION
This was a
criminal
proceeding brought by the State of Georgia charging the appellant with
a
felony, possessing obscene material in violation of Georgia Code
26-6301 as
amended by an Act of the General Assembly of 1963, p. 78.
The
judgment of affirmance by
the Supreme Court of Georgia sought to be reviewed was dated April 9,
1968, and
an order denying a rehearing was dated and filed April 22, 1968. The
notice of
appeal was filed in the Supreme Court of Georgia May 1, 1968, the
appeal was
docketed in the Supreme Court of the United States July 16, 1968, and
probable
jurisdiction was noted Oct. 14., 1968.
Jurisdiction
of this appeal
has been conferred on this court under and by virtue of 28 U.S.C.A. No.
1257
(2) .
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
AMENDMENT I-FREEDOM OF RELIGION,
SPEECH AND PRESS; PEACEFUL ASSEMBLAGE; PETITION OF GRIEVANCES
Congress
shall make no law
respecting an establishment of religion, or prohibiting the free
exercise
thereof; or abridging the freedom of speech, or of the press; or the
right of
the people peaceably to assemble, and to petition the Government for a
redress
of grievances.
AMENDMENT
IV-SEARCHES AND SEIZURES
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 to be searched, and the persons or things to be
seized.
AMENDMENT
XIV-CITIZENSHIP; PRIVILEGES AND
IMMUNITIES; DUE PROCESS; EQUAL PROTECTION; APPORTIONMENT OF
REPRESENTATION; DISQUALIFICATION OF
OFFICERS; PUBLIC DEBT; ENFORCEMENT
Section 1. All persons born or
naturalized in
the United
States and subject to the jurisdiction thereof, are citizens of the
United
States and of the State wherein they reside. No State shall make or
enforce any
law which shall abridge the privi1eges or immunities of citizens of the
United
States; nor shall any State deprive any person of life, liberty, or
property,
without due process of law, nor deny to any person within its
jurisdiction the
equal protection of the laws.
CRIMES: SALE, POSSESSION, ETC. OF
OBSCENE MATTER
Code § 26-6301 Amended.
No. 53 (House Bill No. 132).
An Act to
amend Code
Chapter 26-63, relating to obscene pictures and abusive and vulgar
language, as
amended, particularly by an Act approved March 17, 1956 (Ga. L. 1956,
p. 801) ,
so as to provide that any person who shall knowingly bring, or cause to
be brought
into this State for sale or exhibition, or who shall knowingly sell or
offer to
sell, or who shall knowingly lend or give away or offer to lend or give
away,
or who shall knowingly have possession of, or who shall knowingly
exhibit or
transmit to another, any obscene matter, or who shall knowingly
advertise for
sale by any form of notice, printed, written, or verbal, any obscene
matter, or
who shall knowingly manufacture, draw, duplicate or print, any obscene
matter
with intent to sell, expose, or circulate the same, shall, if such
person has
knowledge or reasonably should know of the obscene nature of such
matter, be
guilty of a felony, and upon conviction thereof, shall be punished by
confinement in the penitentiary for not less than one year nor more
than five
years; to provide that upon the recommendation of the jury, said
offense may be
punished as for a misdemeanor; to provide for definitions; to provide
for sever
ability; to repeal conflicting laws; and for other purposes.
Be it
enacted by the
General Assembly of Georgia:
Section 1.
Code Chapter
26-63, relating to obscene pictures and abusive and vulgar language, as
amended, particularly by an Act approved March 17, 1956 (Ga. L. 1956,
p. 801),
is hereby amended by striking Code section 26-6301 in its entirety, and
inserting in lieu thereof a new section 26-6301 to read as follows:
"26-6301.
Any person
who shall knowingly bring or cause to be brought into this State for
sale or
exhibition, or who shall knowingly sell or offer to sell, or who shall
knowingly lend or give away or offer to lend or give away, or who shall
knowingly have possession of, or who shall knowingly exhibit or
transmit to
another, any obscene matter, or who shall knowingly advertise for sale
by any
form of notice, printed, written, or verbal, any obscene matter, or who
shall
knowingly manufacture, draw, duplicate or print any obscene matter with
intent to sell, expose or circulate the
same, shall, if such person has knowledge or reasonably should know of
the
obscene nature of such matter, be guilty of a felony, and upon
conviction
thereof, shall be punished by confinement in the penitentiary for not
less than
one year nor more than five years; provided, however, in the event the
jury so
recommends, such person may be punished as for a misdemeanor. As used
herein, a
matter is obscene if, considered as a whole, applying contemporary
community
standards, its predominant appeal is to prurient interest, i.e., a
shameful or
morbid interest in nudity, sex or excretion."
Section 2.
In the event any
section, subsection, sentence, clause or phrase of this Act shall be
declared
or adjudged invalid or unconstitutional, such adjudication shall in no
manner
affect the other sections, subsections, sentences, clauses or phrases
of this
Act, which shall remain of full force and effect, as if the section,
subsection, sentence, clause or phrase so declared or adjudged invalid
or
unconstitutional was not originally a part hereof. The General Assembly
hereby
declares that it would have passed the remaining parts of this Act if
it had
known that such part or parts hereof would be declared or adjudged
invalid or
unconstitutional.
Section 3.
All laws and
parts of laws in conflict with this Act are hereby repealed.
Approved
March 13, 1963.
1. Whether
Georgia Code
section 26-6301 (Ga. Laws, 1963, p. 78) , under which the appellant was
convicted, is repugnant to the First and Fourteenth Amendments to the
Constitution of the United States guaranteeing freedom of press and due
process
in that the statute removes the element of scienter from the definition
of the
offense of possessing obscene matter, and makes the mere possession of
such
matter a crime.
2. Whether
a search warrant
issued by a U. S. Commissioner authorizing a search of premises for
bookmaking
records and other wagering paraphernalia, founded on affidavits that
the person
whose home is sought to be searched has not registered as a gambler
under the
Wagering Tax Act, is invalid since the holding by this court in
Marchetti v. U.
S., 390 U.S. 39 (88 S. Ct. 697) and Grosso v. U.S., 390 U.S. 62 (88 S.
Ct.
709).
3. Whether
the Supreme
Court of Georgia erred in holding and deciding that the search warrant
and the
search conducted there under were legal.
4. Whether
a state officer,
acting in concert with federal agents executing a federal search
warrant issued
for failure to register as a gambler, were constitutionally authorized
to seize
motion picture films concealed in a desk drawer of appellant's home on
a claim by
the state officer that the films were obscene where such search warrant
did not
describe the films to be seized and there was no prior adjudication
that they
were obscene.
5. Whether
a state may
constitutionally punish an individual for the mere possession of films
alleged
to be obscene where there is no evidence to show the appellant had
prior
knowledge that they were obscene, or that he had ever viewed them, or
that he
had permitted juveniles to view them, or that he was publishing them in
a
manner so obtrusive as to make it impossible for an unwilling
individual to
avoid exposure to them, or that he was "pandering" them.
The
appellant was indicted
by the Fulton County Grand Jury for the offense of possessing obscene
matter,
to-wit: three reels of motion picture film. (A. 5)
Upon his
arraignment he
filed a general demurrer to the indictment on the ground that the Act
was in
conflict with the First and Fourteenth Amendments to the U. S.
Constitution in
removing the element of scienter from the definition of the offense.
(A. 7) The
trial court, after hearing argument of counsel, overruled the demurrer
on all
grounds. (A. 9)
Appellant
also filed a
special demurrer to that portion of the indictment which alleged that
"accused should reasonably have known of the obscene nature of said
matter," contending that it violated his First and Fourteenth Amendment
rights by removing scienter from the offense. (A 10) This demurrer was
overruled by the court. (A 12)
Appellant
filed a motion to
suppress the three reels of film from evidence (A. 13) on the grounds
they were
seized from his home by an Investigator of the Criminal Court "without
a
lawful search warrant particularly describing said articles to be
seized,"
in violation of his Fourth and Fourteenth Amendment rights and that "no
prior adjudication had been made that said articles were obscene" in
violation of his First and Fourteenth Amendment rights.
Evidence
was heard by the
trial court on this motion, at which time the State introduced in
evidence a
federal search warrant and supporting affidavits issued for the
violation of
the Federal Wagering Tax Act. (A. 24, 57) After argument of counsel the
motion
was overruled. (A. 58)
The case
proceeded to trial
before a jury, and a verdict of guilty was returned and a sentence of
one year
imposed. (A. 60, 61)
The
evidence for the State
consisted of testimony by federal agents and one state officer that
they
searched the appellant's home pursuant to the federal search warrant
for the
seizure of wagering paraphernalia. They found no articles described in
the
warrant, but during the course of the search discovered three reels of
"stag" film described in the indictment concealed in a desk drawer of
one of the bedrooms. They found a motion picture projector and a
screen, ran
the film and determined in their opinion they were obscene. The films
were then
seized, the appellant was placed under arrest and the indictment and
conviction
followed.
The
verdict of the jury was
returned January 19, 1967, (A. 60) sentence pronounced January 19, 1967
(A. 61)
motion for new trial filed the same day (A. iii) and overruled November
20,
1967. (A. iii) Notice of appeal to the Supreme Court of Georgia was
filed
December 14, 1967 (A. 62). The appellant enumerated as error the
overruling of
the motion to suppress evidence, the overruling of the general demurrer
to the
indictment, the holding by the trial court in its rulings on the
demurrers that
the Act of the General Assembly under which the appellant was tried was
constitutional and not in conflict with the First and Fourteenth
Amendments to
the United States Constitution; and that the evidence did not support
the
verdict in that the State failed to prove that appellant exhibited the
alleged
obscene films to any other person. (A. 64)
The
unconstitutionality of
the Act of 1963, p. 78, under which appellant was convicted, was first
raised
in the trial court by the 3rd ground of the general demurrer (A. 7) and
the
special demurrer (A. 10) and were overruled by the trial court (A. 9
and 12),
enumerated as error in the Georgia Supreme Court, (Grounds 2, 5, and 6,
A. 64)
passed on by the Georgia Supreme Court adversely to appellant in the
4th
section of the opinion, (A. 69, 70 and 71) and motion for rehearing on
this
ground was made (A. 75 and 76, ground 3).
The
invalidity of the
search and. seizure was first raised in the trial court by the motion
to
suppress prior to trial (A. 13), overruled by the trial court (A. 58),
enumerated as error in the Georgia Supreme Court (A. 64)
(Ground
1), and passed on
by the Supreme Court of Georgia in Section 1 of the opinion (A. 66). A
motion
for rehearing of this ground was made. (A. 73, grounds 1 and 2).
The
insufficiency of the
evidence in failing to show that appellant had exhibited the films to
an
unwilling individual or a minor was raised in enumeration of error No.
8 in the
Georgia Supreme Court, passed upon by that Court in Section 6 of its
opinion
(A. 71), and a motion for rehearing was made on this ground in
paragraph 4 (A.
76).
SUMMARY OF ARGUMENT
1.
Georgia's Obscenity
statute, in removing the element of scienter from the definition of the
offense
of Possessing Obscene Material, violates the First Amendment rights of
an
individual, in that it makes the mere possession of such matter a
crime,
without requiring any other act or intent to accompany the mere
possession. The
rule of Roth v. United States, 354 U.S. 476, holding obscenity not to
be
protected by the First Amendment, is inapplicable to the mere
possession of
obscene material.
2. The
search warrant,
under which the films in this case were seized by federal and state
officers,
was void because it was issued pursuant to the Wagering Tax Act,
whereas this
Court, in Marchetti and Grosso v. United States, 390 U.S. 39 and 390
U.S. 62,
has declared such Act constitutionally unenforceable, thus rendering
such
search warrants issued pursuant thereto unenforceable.
3. The
Georgia Supreme
Court held the search warrant in this case to be valid, even though the
appellant, in his motion to suppress in the trial court, alleged the
seizure of
the films to have been "without a lawful warrant." This holding of the
Georgia Supreme Court was error.
4. The
films were seized
from the home of the appellant. There was no warrant particularly
describing
the films to be seized. There had been no prior adjudication that the
films
were obscene. Inasmuch as there was no warrant describing the films to
be
seized, or determining that they were obscene, the officers in using
their own
judgment violated the rule of Marcus v. Search Warrants of Property,
367 U.S.
717. The seizure of the films under these circumstances violated the
appellant's
Fourth and Fourteenth Amendment rights.
5.There
was no evidence of
prior knowledge by the appellant that the films were obscene, and no
charge
made by the State in its indictment that appellant did more than
possess them.
There is no contention that the State is concerned with juveniles
becoming
contaminated by the films, no contention that persons who are unwilling
to see
the films will become exposed to them, and no contention of pandering.
Therefore the conviction is contrary to Redrup v. New York) Austin v.
Kentucky
and Gent v. Arkansas) 386 U.S. 767.
THE
ARGUMENT
The main
question presented
by this appeal involves the validity of the Georgia obscenity statute
and
whether it violates the First and Fourteenth Amendments in authorizing
a
conviction for mere possession of articles contended to be obscene in
removing
the element of scienter from the definition of the offense by punishing
a
possessor on less evidence than it takes to prove actual knowledge of
its
obscene nature.
The
Georgia statute permits
a conviction for possessing obscene articles "if the defendant should
reasonably have known of the obscene nature of said matter" and thus
deprives the accused of his liberty even though he has no actual
knowledge that
it is obscene. Such statute thus places every citizen in jeopardy of
punishment
by the State for possessing matter of which he may not have actual
knowledge,
or for believing, as he has a right to under the freedom of press
clause of the
First Amendment, that in his opinion it is not obscene.
Such
statute thus deprives
a citizen of the right given by the First Amendment to judge for
himself, if he
so chooses, as to what photographs, writings or books he may possess in
the
privacy of his own home.
In
Smith v. California, 361
U.S. 147,
This Court
held that
"by dispensing with any requirement of knowledge of the contents of the
book on the part of the seller, the ordinance tends to impose a severe
limitation on the public's access to constitutionally protected
matter."
(P. 153.)
If the
State is prohibited,
by the First and Fourteenth Amendments, from removing the element of
scienter
from the offense of selling or pandering obscene material, and is thus
prohibited from punishing a bookseller for selling an obscene book
where such
seller has no actual knowledge of its contents, may the States
prescribe any
less a standard against those who are not charged with pandering,
selling or
distributing, but merely possessing the same material? To put the
matter in
converse, are the States to be prohibited from convicting a seller who
has no
knowledge of the contents of the book he is selling, but may the same
State
convict such seller of possessing the same book, even though he was
without the
same knowledge?
The
indictment in this case
charges the appellant with knowingly possessing obscene matter. (A__)
It
further charges that he should reasonably have known of the obscene
nature of
said matter. If he has been called upon to defend his actual knowledge
that is
one thing. If he has been called upon to defend that he should
reasonably have
known of the obscene nature of said matter, that is another. If the
State is
able, by some sort of proof, direct or circumstantial, to show that the
appellant should reasonably have known of the obscene nature of said
matter,
such proof could be adduced far short of proving that he actually did
know.
This removed the element of scienter) and thus took from the appellant
the
constitutional protection of the First and Fourteenth Amendments.
It would
be virtually
impossible for any person to have actual knowledge that matter is
obscene, nor
could he reasonably be expected to have such knowledge, without having
actually
or constructively possessed such matter beforehand. For an individual
to have
knowledge of the contents of a reel of film, or to reach a
determination of his
own that it is obscene, he must learn it by viewing the film, or by
having been
told by another that it is obscene. Thus, to learn firsthand it would
be necessary
that one possess the film in order to see it, and thus discover for
himself his
own opinion of its contents. To be required to accept the opinion of
another
that such film is obscene is to be deprived of the constitutional right
to
access of such picture, and thus be deprived of freedom of speech and
press.
Furthermore, the opinion of one man that a certain film is obscene may
oftentimes not be shared by others. Consequently, in order for one to
have
knowledge of the contents of a film, or to make a determination for
himself
that it is obscene, necessarily requires that he possess it, and such
possession has been made an offense under Georgia law.
Therefore,
if A picks up a
book at a newsstand or library, not knowing of its contents, he is in
possession of it. If he reads it, in order to make a determination that
it is
actually constitutionally protected matter, and after reading it first
ascertains that it is obscene, he has violated the Georgia law because
he has
possessed it at the time he knows it to be obscene. Such a law is
obviously
unconstitutional, and cannot stand. If he should only have reasonably
known of
the obscene nature of said matter, instead of actually having such
firsthand
knowledge, the unconstitutionality of such statute is further removed
by one
more degree.
The State
originally relied
upon
For
example, Roth involved
distribution of obscene material. The decision assumed that Roth was
aware of
the contents, and by the distribution of the material could not claim
the
protection of the First Amendment. This rule might very well be applied
to the
seller or distributor, for once ascertaining for himself that the
matter is
obscene he is on notice not to furnish it to others who might become
offended.
But Roth does not hold that the mere possessor of such material can be
constitutionally punished. Nor does it hold that the mere possessor may
not
claim the First Amendment's protection as to his right to decide for
himself
whether it offends him.
Thus, to
extend the rule of
Roth to a mere possessor would curtail the exchange of books,
photographs and
films because every man and woman would be in fear of buying such items
because
they would be in peril of being prosecuted by the State if the book or
magazine
they have bought turns out to obscene, or the film they are viewing
does not
meet the standards of morality of their community.
If such
article offends the
possessor after he has determined for himself that it is offensive, he
has
two choices. First, he may destroy it,
and second, he may keep it. But in either case the possessor could be
punished
under the Georgia statute as interpreted by the Georgia Supreme Court
because
he has already knowingly possessed it, knowing it to be obscene.
In the
case at bar, the
State has sought and is seeking, to deprive the appellant of his
liberty upon
the mere claim that he possessed, (apparently for his own use) three
reels of
film, contended by the State to be obscene, and that he either knew, or
reasonably should have known, that they were obscene. No sale is
alleged. No
exhibition or attempted exhibition is alleged. No advertisement is
alleged. No
corruption of minors is alleged. No transportation is alleged. In fact,
nothing
is alleged to have been done by the appellant other than the fact that
he did
"possess" such matter.
The
Georgia Supreme Court,
however, has construed the Georgia statute to punish the mere
possession of
such articles, by holding:
2.
SEARCH WARRANT INVALID
At the
time the search
warrant was issued in this case, (App.__,) the Wagering Tax Act was
being
enforced under the authority of United States v. Kahriger
345 U.S. 22, and
Lewis
v. United States, 48 U.S. 419, holding
the statute to be
constitutional.
The
warrant was issued by a
U.S. Commissioner on the probable belief that a lottery or wagering
operation
was being carried on at the residence of the appellant, and that
inasmuch as
sworn evidence was presented that appellant had not registered or paid
his tax
as purportedly required by federal law, a warrant should issue to
require the
seizure of such implements of gambling as might be found in use there.
On the 7th
day of September
1966, the date the warrant was issued and executed, the federal
wagering tax
act was being enforced.
However,
as of this date
both Kahriger and Lewis have been specifically overruled by this Court.
On
January 29, 1968, two weeks after the appellant filed his original
brief and
enumeration of errors in the Georgia Supreme Court in this case, in the
case of
In Grosso,
the
unenforceability of the Wagering Tax Act against one who has even the
remotest
right to claim the Fifth Amendment privilege was so strongly recognized
as an
inherent defense to such a charge that even the failure of the
petitioner to
assert the claim of privilege was held not to constitute a waiver of
the
privilege.
If, in the
instant case,
the Agent had seized wagering material as a result of the execution of
the
search warrant, a conviction based thereon would have fallen for the
same
reasons as those urged in Marchetti and Grosso, on the theory that
appellant
would not have been required to criminate himself by registering.
If,
applying this same
analogy to the validity of the search warrant, the appellant had
registered as
a gambler and paid his tax, there never would have been federal grounds
for the
issuance of the search warrant because he would obviously not have
violated the
federal statute by conducting a wagering operation. Consequently,
having the
constitutional right to exercise his Fifth Amendment protection by not
registering as a gambler bars that same failure to register from being
the
basis for which a search warrant (the commencement of a prosecution)
might
validly issue.
The search
warrant was
therefore void, the seizure of the films was illegal, the finding of
the trial
court that as a matter of law the warrant was valid and the holding of
the
Georgia Supreme Court in division one of its opinion that the warrant
and the
search there under were legal, was erroneous under the Fourth and
Fourteenth
Amendments to the U. S. Constitution.
3.
GEORGIA
COURT'S HOLDING THAT SEARCH WARRANT
VALID AND THAT SEARCH WAS LAWFUL
The search and seizure question,
while not an
appeal able
question, is substantial and should be treated as a certiorari able
question
under 28 U.S.C.A. No. 2103.
Appellant,
in his motion to
suppress, alleged the films to have been seized "without a lawful
warrant." (A.) The warrant was invalid under Grosso & Marchetti and
should have been declared void by the Georgia Supreme Court.
4.
SEIZURE
OF FILMS WITHOUT PRIOR ADJUDICATION
OF OBSCENITY
Originally
it was
recognized by the Supreme Court of the United States in
On the
same day that Mapp
was handed down by the Supreme Court the same principle was applied to
the
statutes of the State of Missouri as they authorized the search for and
seizure
of materials sought to be declared obscene.
In Marcus v. Search Warrants of
Property, 367 U. S. 717,
In Marcus,
the appellants,
owners of a newsstand where numerous books and periodicals had been
seized by
police officers under a warrant issued by a magistrate, moved to
suppress the
evidence because the procedures applied (l) "allowed a seizure by
police
officers without notice or any hearing afforded to the movants prior to
seizure
for the purpose of determining whether or not these publications are
obscene,'
and (2) because they 'allowed police officers and deputy sheriffs to
decide and
make a judicial determination after the warrant was issued as to which
magazines were obscene and were subject to seizure, impairing movants
freedom
of speech and publication'." The Supreme Court then determined that the
question was "whether the use by Missouri in this case of the search
and
seizure power to suppress obscene publications involved abuses inimical
to
protected expression" and noted that the authority given to "police
officers under the warrants issued in this case, broadly to seize
'obscene
publications,' poses problems not raised by the warrants to seize
'gambling
implements' and all intoxicating liquors' involved in the cases cited
by the
Missouri Supreme Court." The Supreme Court, after applying the
foregoing
principles, held:
In Marcus,
the Supreme
Court was dealing with even a stronger position insofar as the
prosecution was
concerned. In Marcus, a search warrant had been obtained in the
language of the
statute and the complaint authorizing the police officers to seize such
magazines as in his view constituted "obscene publications." In the
case at bar no warrant had been obtained authorizing even this broad
seizing
power.
In Marcus,
there was in
existence a State statute specifically authorizing the issuance of such
a
warrant, and prescribing the procedure therefore. Such a warrant was
obtained.
In the case at bar the officer executing the search of the appellant's
home did
not seize any matter or thing called for by the warrant, but made a
decision,
ad hoc, that the three reels of film were obscene, without benefit of
any prior
adjudication by a court or the Literature Commission.
The
appellant recognizes
that if an officer, executing a valid search warrant, discovers
evidence of
another and different crime or sees what is known to be contraband, he
may make
a seizure, even though the warrant does not particularly describe the
article
being seized. However, as pointed out in the Marcus case, supra, the
State
court's "assimilation of obscene literature to gambling paraphernalia
or
other contraband for purposes of search and seizure does not therefore
answer
the appellants constitutional claim, but merely restates the issue
whether
obscenity may be treated in the same way:" (Emphasis added.)
It is to
be plainly noted
in this case that the officer, after discovering three reels of film
and making
an inspection thereof, did not seek to enlist the aid of a qualified
magistrate
to make oath to him what he had seen, and to secure an adjudication by
such
magistrate that the films were obscene, so that at least the semblance
of
judicial authority would have been obtained so as to authorize the
seizure of
the films. Instead, the officer called the Solicitor General, whose
duty it is
to prosecute, and was advised to use "his own judgment" as to whether
the films were obscene. (A.)
What is
obscenity, and how
has it been defined by the courts? Did the appellant know that it was
obscene
before he had himself viewed it? Was the appellant able to apply the
same
contemporary community standards as those who later testified at the
trial in
making his determination that the films were obscene? All these
questions, and
many more, come to mind in now trying to second guess whether the
officer, in
making such a determination, was applying the same standards and
criteria as
those applied by the appellant when the films were seized.
5. NO
EVIDENCE OF PRIOR
KNOWLEDGE, THAT JUVENILES OR UNWILLING PERSONS VIEWED THEM OR OF
PANDERING INVOLVED
On May 8,
1967, the United
States Supreme Court decided three different cases at one time. Redrup
v. State
of New York, Austin v. Kentucky, and Gent v. State of Arkansas, 386
U.S. 767,
87 S.Ct. 1414>, Nos. 3, 16 and, 50, October Term, 1966. All three
cases
involved selling and offering obscene literature. All three cases were
reversed
on First and Fourteenth Amendment grounds. In a per curium decision,
the
Supreme Court held:
The record
in the instant
case reflects that there was no contention by the State that the
appellant was
doing any more than possessing the films, and there was a specific
holding by
the Georgia Supreme Court that nothing except possession need be
alleged. There
was no contention that the State was showing a concern for the morals
of
juveniles. There was no contention that the appellant was showing the
films to
persons unwilling to see them. There was no contention that he was
pandering
them.
It is
unnecessary for the
Court to review the evidence in the case to reach this question, for
the State,
by its very contention, seeks to punish the appellant for the mere
possession
of these films.
It is the
constitutional
right of every person in this country to have the freedom to choose
what
literature he desires to read or determine for himself what pictures or
films
'he desires to look at. To convict of mere possession is to deny a
First
Amendment freedom.
The
statute under attack in
this appeal violates the First and Fourteenth Amendments, the search
warrant
was void and the seizure of the films from the appellant's custody
without a
prior adjudication of obscenity or without specifically naming such
films to be
seized in a valid warrant was illegal, and the judgment of the Supreme
Court of
Georgia should be reversed.
Respectfully submitted,
WESLEY R. ASINOF
3424 First National
Bank Bldg.
Atlanta, Georgia 30303
Attorney for Appellant