Petition — Croatan Books, Inc. v. Virginia

8021601

Office-Supreme Court, U.S.

FILED

No. MAR 28 1981

ALEXANDER L. STEVAS,

CLERK

IN THE

Suprene Court of the United States

OCTOBER TERM, 1980

CROATAN Books, INC.,

Petitioner,

V.

COMMONWEALTH OF VIRGINIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

CERCUIT COURT OF FAIRFAX COUNTY, VIRGINIA

ROGER C, SPAEDER

ROGER E. ZUCKERMAN

RONALD R. MASSUMI

ZUCKERMAN, SPAEDER, TAYLOR

& KOLKER

1800 M Street, N.W.

Suite 375 North

Washington, D.C. 20086

202/223-8606

Counsel for Petitioner

one saeaneniiahentiinel

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON. D.C. 20001

’%

QUESTIONS PRESENTED FOR REVIEW

. Whether a jury forced to view allegedly obscene films

three at a time can properly apply the test for ob-

scenity and evaluate each film “as a whole?” ;

. Whether a warrant which necessarily results in a prior

restraint on the dissemination of material presump-

tively protected by the First Amendment because it

authorizes seizure not only of films allegedly obscene,

but also of projectors and other equipment necessary

to carry on first amendment activities, is overbroad

and constitutionally invalid.

(i)

e%

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ................ (i)

OPINIONS DELIVERED BELOW .......00000000 0... 1

PPT UREITIT sondtinccinteibicncithinapcebecuiceiaeccidianininndise ccd 1

CONSTITUTIONAL PROVISIONS INVOLVED ........ 1

STATEMENT OF THE CASE ..000o..o...cccccccceceecececceoees 2

REASONS FOR ALLOWING THE WRIT .................. 4

I. A Jury Forced to View Three Films at a Time

Cannot Evaluate Each Film in Conformity with

the Constitutional Test for Obscenity ................ 4

II. A Search Warrant Which Affronts the First

Amendment by Creating an Unlawful Prior Re-

straint is Overbroad and Must be Remedied by

Suppression of All the Fruits of the Search

RA RT ST a Sh TT 7

PNT UTTI. stcicensceyisininsipetnetiincsinsmstiissabisienssiachitihassnilasidbaanaaniniieh la

(iii)

PRECEDING PAGE WAS BLANK |

iv

TABLE OF CASES

Page

Application of Lafayette Academy, Inc., 610 F.2d

BR, BRR Ee NOLS ON On 11

Bongiovanni Vv. Hogan, 309 F. Supp. 1864 (S.D.

en OD cece ath intr tiitingianccldednpalippobntiivebiiednctiteasbiinins 8

Bourland v. State, 502 S.W. 2d 8 (Tex. Crim. App.

| PARE Rene es 2S RS eR ERRNO ONe Ra 5

Bryers v. State, 480 S.W. 2d 712 (Tex. Crim.

RTE eck dene ech itinicnsoidatinn to ddmakbibnaincnes 5

Cambist Films, Inc. v. Duggan, 298 F. Supp. 1148

(W.D. Pa.), rev’d on other grounds, 420 F.2d

Ue RO I IE cl Gai ae 5

Cinema Classics, Ltd. v. Busch, 389 F. Supp. 43

(C.D. Cal.), aff'd, 409 U.S. 807 (1972) ............ 7

Eagle Books, Inc. Vv. Reinhard, 418 F. Supp. 345

(N.D. Ill. 1976), vacated on other grounds, 482

eae AE ND Sikri neta cis rncin a eislidiaadcdaninebind 7

Europo Books, Inc. v. Pomerleau, 41 Md. App.

114, 395 A.2d 1195 (Md. Ct. Spec. App. 1974)... _ 7,8

Haldeman v. United States, 340 F.2d 59 (10th Cir.

RRM lor PU Se EEN 2 PNT SOP lt CC 5

Hanley v. State, 479 F.2d 486 (Alaska 1970) ........ 5

Heller v. New York, 418 U.S. 488 (1978) ............ 10

Hosey V. City of Jackson, 309 F. Supp. 527 (S.D.

Miss. 1970), vacated on other grounds, 401 U.S.

GE ied cop descent a ninar ah ca acted aecsacanidles 5

In re Louisiana News Co., 187 F. Supp. 241 (E.D.

HMI HEU. crnscenercinngeccridiciddeaicinpisinipicatbatiicabia tbseinnadaeliig eis 5

Lo-Ji Sales, Inc. v. New York, 442 U.S. 819

| ER a Pe walnie Soe OEM SAN Ra RINT A 11

Maguin Vv. Miller, 483 F. Supp. 228, (D. Kan.

MINIS sii chinichucsniiace bnientiacessidendiinanaanaecetibaden ices padiceaStsuspces 7

Marcus V. Search Warrant, 367 U.S. 717 (1961).. 10

McKinney Vv. Tuscaloosa, 268 So. 2d 488 (Ala.

| RARER apr A. GER ST ar a 5

Miller v. California, 418 U.S. 15 (1978) ...00000.... 4,5,6

Near V. Minnesota, 238 U.S. 697 (1981) 2.00000... 11

People v. New Horizons, Inc., ——- Colo. ——, 616

ee I OE ecchtaicsieiesacniceteiesniccasciainie 5

Vv

TABLE OF CASES—Continued

Playboy Publications, Inc. v. McAuliffe, 610 F.2d

1854 (5th Cir.), cert. dismissed, US. —,

100 8. Ct. 3031, 65 L. Ed. 2d 1181 (1980) .........

Porno, Inc. Vv. Municipal Court, 38 Cal. App. 3d

122, 108 Cal. Rptr. 797 (Cal. Ct. App. 1978)....

Regina v. Hicklin, L.R. 3, Q.B. 8360 (1868) ..........

Roth v. United States, 354 U.S. 476 (1957) ..........

United States v. Burch, 482 F. Supp. 961 (D. Del.

1977), aff'd mem., 577 F.2d 729 (1978) ............

United States v. Polak, 312 F. Supp. 112 (E.D. Pa.

BONERS ETA ata SP see eA ec eee

United States v. Roche, 614 F.2d 6 (1st Cir. 1980)...

United States v. Tupler, 564 F.2d 1294 (9th Cir.

RAR UTR PENANG ec ey

United States v. West Coast News Co., 228 F.

Supp. 171 (W.D. Mich. 1964), aff’d, 357 F.2d

855 (6th Cir. 1966), rev’d on grounds sub nom.

Aday v. United States, 388 U.S. 447 (1967)...

Universal Amusement Co., Inc. v. Vance (Ellwest

Stereo Theatre, Inc. v. Byrd), 404 F. Supp. 33

NY I I thie al oss asiecivatcnnamnieniesenatnetiioonhientl 7, 8,9, 10

Zenith International Film Corp. Vv. City of Chicago,

201 F.2d 785 (7th Cir. 1961) ...............................

ry

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

CROATAN Books, INC.,

‘ Petitioner,

COMMONWEALTH OF VIRGINIA,

Respondent.*

PETITION FOR WRIT OF CERTIORARI TO THE

CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA

OPINIONS DELIVERED BELOW

The judgment of the Circuit Court of Fairfax County

appears in the appendix hereto. The order of the Virginia

Supreme Court, dated January 21, 1981, declining to is-

sue a writ of certiorari to the Circuit Court of Fairfax

appears in the appendix hereto. In addition, the ap-

pendix includes relevant oral rulings of the General Dis-

trict Court of Fairfax County.

JURISDICTION

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1257(38).

CONSTITUTIONAL PROVISIONS INVOLVED

The fourteenth amendment to the United States Con-

stitution, which provides in relevant part:

. . nor shall any State deprive any person of life,

liberty or property without due process of law.

The first amendment to the United States Constitution,

which provides in relevant part:

1 Caption lists all parties.

'

2

Congress shall make no law . . . abridging the free-

dom of speech, or of the press...

The fourth amendment to the United States Constitu-

tion, which provides:

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, sup-

ported by oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

STATEMENT OF THE CASE

Petitioner Croatan Books, Inc., is engaged in the sale

and rental of sexually oriented films, books and magazines

at a store located in Fairfax County, Virginia. On Jan-

uary 24 and March 8, 1979, petitioner’s place of business

was the subject of raids, pursuant to warrant, conducted

by county Vice Squad officers. The warrants authorized

the seizure of numerous short films from private projec-

tion booths, along with projectors and other projection

equipment, coin boxes and advertising placards.

The raids unnecessarily caused such damage to Croa-

tan’s facilities as to prevent continued exhibition of other

films or of copies of the seized films. Officers seized coin

boxes by prying them off the walls with a crowbar. They

seized projectors, screens and mirrors used for projection,

and on the March 8 raid, they seized advertising placards

by taking the projection booth doors to which they were

affixed. The raids were conducted in a needlessly obtru-

sive manner: large numbers of officers, including police

photographers, roamed through the premises; patrons

were informed that they could enter or remain only if

they presented identification.

At a suppression hearing in the General District Court

of Fairfax County, Virginia, Croatan argued that all

the evidence must be suppressed because the raids had

’%

3

been conducted in violation of the first and “‘ourth amend-

ments. The General District Court declined to suppress

the films but ordered the return of all property, save one

projector, one coin box and one placard. Although re-

fusing to suppress, the court strongly denounced the way

in which the searches had been conducted, the size of the

raiding parties, the solicitation of customer identification

and the magnitude of the seizures. At a trial de novo in

the Circuit Court of Fairfax County the suppression issue

was reviewed on the basis of Croatan’s legal memorandum

and on the record of the suppression hearing before the

General District Court. The Circuit Court denied Croa-

tan’s motion to suppress.

Prior to the trial de novo in the Circuit Court, Croatan

requested that the 42 counts of renting obscene material

be severed in order that a single jury be required to view

no more than ten or fifteen films. Croatan believed that

subjecting a jury to the overwhelming task of consider-

ing forty-two films shown each in its entirety would be

so exhausting and irritating that the jury would be un-

able to give each a fair and conscientious viewing.” The

court, however, proposed its own solution to the problem.

The jury would be shown three films simultaneously,

thereby reducing the viewing time by two-thirds. Croatan

vigorously resisted this suggestion and renewed its re-

quest for severance, contending that the test for obscenity,

requiring as it does that the work in question be “taken

as a whole,” could not properly be applied by a jury

forced to consider films three at a time. The court still

refused to permit severance. After Croatan entered pleas

of guilty as to ten of the films, the remaining thirty-two

were shown on a courtroom wall utilizing three projec-

tors running simultaneously. The jury ultimately returned

verdicts of guilty as to twenty of the thirty-two films.

2 The viewing in the first trial in the General District Court had

taken nearly eight hours.

4

REASONS FOR ALLOWING THE WRIT

I. A Jury Forced to View Three Films at a Time Cannot

Evaluate Each Film in Conformity with the Constitu-

tional Test for Obscenity

The sole contested issue at trial was whether the seized

films appealed to a “prurient interest” in sex. Croatan

introduced the extensive expert testimony of Dr. Law-

rence Donner, a psychologist specializing in the study

of sexual behavior and associate professor of clinical psy-

chology at the University of Maryland School of Medi-

cine. Dr. Donner testified that in his opinion none of

the films appealed to a “prurient,” i.e., a sick, morbid or

shameful interest in sex, but rather appealed to a normal

and healthy erotic interest in sex. The State countered

with the testimony of lay witnesses from the community.

In determining whether the dominant theme or pur-

pose of a film is an appeal to the prurient interest, a jury

must consider the film as a whole and not base its judg-

ment on isolated portions or scenes. Miller v. California,

413 U.S. 15, 24 (1978). In the landmark case of Roth

v. United States, 354 U.S. 476, 489 (1957), this Court

disposed of the notion that obscenity can be judged on the

basis of isolated excerpts and held that the determina-

tion of obscenity must proceed from a consideration of

the material “taken as a whole.” The current standard

for obscenity, the so-called “Miller test,” examines

(a) whether “the average person, applying contem-

porary community standards” would find that the

work, taken as a whole, appeals to the prurient in-

terest . . .; (b) whether the work depicts or de-

scribes, in a patently offensive way, sexual conduct

specifically defined by the applicable state law; and

(c) whether the work, taken as a whole, lacks ser-

ious literary, artistic, political, or scientific value.

Miller, 413 U.S. at 24 (emphasis added).

|

5

An isolated segment of a film, book or magazine can-

not constitutionally provide either probable cause for an

obscenity arrest® or the foundation for an obscenity

conviction.* When the obscenity of a motion picture is in

issue, the factfinder must view the entire film in order

to make a proper determination." Failure to do so must

vitiate the finding of obscenity.*

In this case, Croatan focused its entire argument upon

the first prong of the Miller test, seeking to establish in

%See United States v. Tupler, 564 F.2d 1294, 1297 (9th Cir.

1977) ; Hosey v. City of Jackson, 309 F. Supp. 527, 584 (S.D. Miss.

1970), vacated on other grounds, 401 U.S. 987 (1971) ; Cambist

Films, Inc. v. Duggan, 298 F. Supp. 1148, 1152 (W.D. Pa.), rev'd

on other grounds, 420 F.2d 687 (3d Cir. 1969) ; Hanley v. State,

479 P.2d 486, 493 (Alaska 1970).

* See, e.g., Playboy Publications, Inc. v. McAuliffe, 610 F.2d

1354, 1369 (5th Cir.), cert. dismissed, —— U.S. —, 100 S. Ct.

3031, 65 L. Ed. 2d 1131 (1980) (while certain parts of a magazine

if considered separately would be obscene, the magazine may turn

out to be not obscene when considered as a whole) ; In re Louisiana

News Co., 187 F. Supp. 241, 246 (E.D. La. 1960) (one objectionable

picture cannot render entire publication obscene) ; People v. New

Horizons, Inc., —— Colo. ——, 616 P.2d 106 (Colo. 1980) (statute

unconstitutional which would allow magazine consisting of words

and pictures to be declared obscene on the basis of the pictures

alone without reference to text or accompanying articles).

5 See Haldeman v. United States, 840 F.2d 59, 62 (10th Cir.

1965) ; Zenith International Film Corp. v. City of Chicago, 291

F.2d 785, 789 (7th Cir. 1961); United States v. West Coast News

Co., 228 F. Supp. 171, 178 (W.D. Mich. 1964), aff'd, 357 F.2d 855

(6th Cir. 1966), rev’d on other grounds sub nom. Aday v. United

States, 388 U.S. 447 (1967); Bourland v. State, 502 S.W.2d 8, 9

(Tex. Crim. App. 1978); Bryers v. State, 480 S.W. 2d 712, 717-19

(Tex. Crim. App. 1972) ; McKinney v. Tuscaloosa, 268 So. 2d 488,

492 (Ala. 1972).

*For example, in Zenith International Film Corp. v. City of

Chicago, 291 F.2d 785, 789 (9th Cir. 1961), the court overturned

an obscenity conviction where the factfinder “failed to view the

film as a whole and thus could under no circumstances apply the

proper standard of obscenity.”

6

the minds of the jury a distinction between material

which appeals to a “prurient” interest in sex and that

which appeals merely to the perfectly normal, healthy

erotic interest in sex. That is a distinction subtle enough

to challenge a jury’s discrimination even in the best of

circumstances. It is too much to expect that any jury

confronted with three films projected simultaneously upon

the courtroom wall can somehow perceive each “as a

whole,” fix each in mind and memory, and then ac-

curately sort through the afternoon’s jumble of cinematic

impressions in order to separate the obscene from the

protected.

The simultaneous screening forced the jurors to turn

from film to film, able to concentrate on only a portion

of each at a time or perhaps, when attention waned, to

let vision fall passively upon some one of the three. What-

ever the case, it is plain that no juror could have viewed

all of every film, and therefore none could judge each

film as a whole.

In light of Roth and Miller, there is simply no alterna-

tive to viewing each film in its entirety and judging each

as an integral whole. The procedure adopted here under-

mines a basic tenet of first amendment jurisprudence

namely: that a work is obscene, if at all, by virtue of

its entire content, not by virtue of some particular, iso-

lated part. To permit, as here, a trial court to impose a

procedure which precludes any possibility that disputed

films can be judged in their entirety would be, in prac-

tical effect, to sanction a return to the days of Regina v.

Hicklin, L.R. 3, Q.B. 360 (1868), when it was thought

proper to judge obscenity by viewing only isolated ex-

cerpts of a work. To protect the vitality of the Roth-

Miller approach and to assure that trial courts exercise

utmost vigilance in assuring that trial procedures do not

undermine the most basic principle of those seminal cases,

the requested writ should issue.

*%

7

II. A Search Warrant Which Affronts the First Amend-

ment by Creating an Unlawful Prior Restraint is Over-

broad and Must be Remedied by Suppression of All

the Fruits of the Search and Seizure

The warrants in this case provided for the seizure not

only of particular items alleged to be obscene, but also

for the seizure of non-criminal viewing equipment. The

January warrant authorized the seizure of fifteen pro-

jectors, fifteen coin boxes and various advertising pla-

cards, in addition to twenty films. Similarly, the March

warrant permitted the seizure of thirty coin boxes, ten

screens and ten mirrors used in projection. The removal

of these items of equipment caused considerable damage

to the premises, and during one of the raids police officers

were obliged to take projector booth doors in order to

seize advertising placards affixed to them.

By authorizing the seizure of viewing equipment, the

warrants condoned an unlawful prior restraint.? The

taking of the equipment interfered with Croatan’s ability

to continue disseminating presumptively protected mate-

rial. The warrants fail because they go beyond the power

to seize allegedly obscene material and purport to em-

power the authorities “to seize the instrumentalities so

that they cannot be used to disseminate any speech at

all.” United States v. Polak, 312 F. Supp. 112, 116 (E.D.

Pa. 1970). As one court has put it, the state has no

more right to seize the projector because the film is ob-

jectionable than it would have “to seize the printing

See Eagle Books, Inc. v. Reinhard, 418 F. Supp. 845 (N.D.

Ill. 1976), vacated on other grounds, 432 U.S. 902 (1977) ; Cinema

Classics, Ltd. v. Busch, 389 F. Supp. 43 (C.D. Cal.) ; aff’d, 409 U.S.

807 (1972); Maguin v. Miller, 483 F. Supp. 223, 230 (D. Kan.

1977) ; Universal Amusement Co., Inc. v. Vance (Ellwest Stereo

Theatre, Inc. v. Byrd), 404 F. Supp. 33, 51-57 (S.D. Tex. 1975);

United States v. Polak, 312 F. Supp. 112 (E.D. Pa. 1970); Europo

Books, Inc. v. Pomerleau, 41 Md. App. 114, 395 A.2d 1195 (Md.

Ct. Spec. App. 1979).

presses because the newspaper contains patently obscene

matter.” * Europo Books, Inc. v. Pomerleau, 41 Md. App.

114, 395 A.2d 1195 (Md. Ct. Spec. App. 1979).

In cases where there has been a seizure of the instru-

ments needed for distribution of presumptively protected

material, the government typically argues that they were

seized as evidence and instrumentalities of the crime.

Such an argument must fail;* the evidentiary value of

projectors, for example, at an obscenity trial is minimal

at best, but the effectiveness of such a seizure in restrict-

ing expression is substantial: *°

® The court in Polak, 312 F. Supp. at 116, stated the issue even

more emphatically. The government had sought to justify seizure

of a mail order house’s copiers and business machines. It argued

that the machines were instrumentalities of the crime of using

the mails to distribute obscene matter. The court gave the argu-

ment short shrift:

If the Government’s argument on this point is accepted, they

would be permitted to seize and retain the printing presses of

a large metropolitan newspaper if a single commercial adver-

tisement were determined to be obscene. The next step would

be to seize a television network on the ground, perhaps, that

its instrumentalities were used in the dissemination of an

obscene film. The scope of the power asserted is almost limit-

less. To permit the G.vernment by this device to seize the very

instrumentalities of speech would effect a much more drastic

suppression of the opportunities of expression than any of

the prior restraints which have been heretofore considered and

condemned by the United States Supreme Court.

* Cases which have considered and rejected such an argument

include Universal Amusement Co., Inc. v. Vance (Ellwest Stereo

Theatre, Inc. v. Byrd), 404 F. Supp. 38, 51-57 (S.D. Tex. 1975);

United States v. Polak, 312 F. Supp. 112 (E.D. Pa. 1970): Bon-

giovanni Vv. Hogan, 309 F. Supp. 1364 (S.D.N.Y. 1970); Europo

Books, Inc. v. Pomerleau, 41 Md. App. 114, 118, 395 A.2d 1195,

1198 (Md. Ct. Spec. App. 1979); Porno, Inc. v. Municipal Court,

83 Cal. App. 3d 122, 108 Cal. Rptr. 797 (Cal. Ct. App. 1973).

10 As was said in Europo Books, 41 Md. App. at 1198, 395 A.2d

at 118:

9:

The State claims . . . that all it was attempting to

do was to gather evidence for the trial of obscenity

cases and the instruments used in the business were

evidence of the crime. Certainly, projection equip-

ment, coin boxes, stools, and portions of booths would

not be relevant evidence in the trial of a case alleg-

ing commercial exhibition of obscene materials. Proof

of the obscenity would seem to rise or fall with the

material exhibited, not with equipment used to ex-

4 hibit the materials. .. .

In a case which does not involve the first amendment,

this court might accept the “evidence” argument

....+ It is too tenuous, however, when placed in the

light of the first amendment. ... Whether intentional

or not, and we need not make such a finding here,

[the seizures] served to curtail the operation of the

business.

‘ Universal Amusement (Ellwest), 404 F. Supp. at 54-55.

Seizures of the sort encountered here make it physi-

cally and financially unfeasible for exhibitors to carry on

with their business. It is precisely because of their im-

pact upon the free dissemination of presumptively pro-

tected materials that they must be condemned as prior

restraints.

Motion pictures are protected by the first amend-

ment. Only if they are judicially judged to be ob-

scene, using the guidelines set forth by the Supreme

Court, do they cease to be protected by the first

The theory advanced by the State for the seizure of the

projectors is that they are “evidence of the crime” of showing

unlicensed motion picture film. Why the film, itself, coupled

with the testimony of the officer that it had been exhibited,

would not suffice is unexplained. Neither is there an expla-

nation as to how the projector adds to the State’s proof or in

any manner strengthens the State’s case.

We believe the State had no more right to. seize the pro-

jector ... than it would. . . to seize the printing presses

because the newspaper contains patently obscene matter.

7%

10

amendment. While it is true that the showing of a

motion picture can be a crime, it is not a crime until

it has been judicially determined to be so. This fact

takes motion picture obscenity cases out of the realm

of crimes such as gambling. A gambler may have a

business and he may utilize gambling machines and

instruments to carry on his business. The police...

may come in with a search warrant and seize all of

his equipment, effectively shutting down his business.

Such a case would not disturb a court for one reason:

the gambler does not have any protections which fall

outside the due process requirements of a state’s

criminal laws. The adult motion picture proprietor,

however, . .. has an added protection—the protec-

tion of the first amendment. Until the items which

he shows are each proved obscene, he can show any-

thing he wants to show. The police cannot shut down

or attempt to shut down his business.

Universal Amusement (Ellwest), 404 F. Supp. at 54.

The scope, purpose and method of searches and seizures

of material presumptively protected by the First Amend-

ment must be analyzed with special rigor. Marcus v.

Search Warrant, 367 U.S. 717, 731 (1961). In par-

ticular, seizure of specific films for the bona fide purpose

of obtaining evidence for a criminal proceeding must be

distinguished from a seizure which is aimed at, or has

the effect of, actually blocking the continued distribution

or exhibition of presumptively protected matter which

has not yet been subject to a judicial determination of

obscenity. Heller v. New York, 413 U.S. 488, 492 (1978).

A seizure of the latter type is an impermissible prior

restraint. Marcus, 367 U.S. at 736. The scope of the

warrant, as well as the procedures utilized in executing

it, must be structured so as to ensure that the distribu-

tion of protected material is not stifled.

If a warrant, when executed in accordance with its

terms, naturally and necessarily creates a prior restraint,

1l

then that warrant fails for overbreadth and is uncon-

stitutional on its face. When a seizure is made pursuant

to a warrant which is overbroad, the appropriate remedy

is suppression of all the property seized. See, ¢.g., Lo-Ji

Sales, Inc. v. New York, 442 U.S. 319 (1979); United

States v. Roche, 614 F.2d 6 (1st Cir. 1980) ; Application

of Lafayette Academy, Inc., 610 F.2d 1 (1st Cir. 1979) ;

United States v. Burch, 482 F. Supp. 961 (D. Del. 1977),

aff'd mem., 577 F.2d 729 (1978) .™

The long-standing American aversion to prior re-

straints became a keystone of first amendment theory

with the Supreme Court’s decision in Near v. Minnesota,

238 U.S. 697 (1931). No matter what form they take,

prior restraints are utterly inimical to first amendment

values. In the instant case, needlessly overbroad war-

rants created a prior restraint. To remedy that first

11 The cases cited deal with “general warrants.” The purpose

of the fourth amendment particularity requirement is to prevent

the seizure of unoffending or irrelevant items. In one sense, the

problem posed by the warrants at issue in this case is com-

parable to the general warrant situation: the projection equip-

ment seized was (1) “unoffending” since there is no criminality

attached to possession of such equipment, and (2) “irrelevant”

since, as explained in the text accompanying notes 9-10, the

equipment would be of little evidentiary value in prosecuting an

obscenity violation.

However, the problem here lies beyond the resolving power of

these purely fourth amendment categories. Even if the warrants

appeared to be valid in terms of the fourth amendment particu-

larity requirement, it would nonetheless be true that their execution

would result in an impermissible prior restraint. The first amend-

ment prior restraint problem, it is submitted, constitutes inde-

pendent and sufficient grounds for holding the warrants invalid.

Lo-Ji Sales, it should be noted, also involved the seizure of pro-

jection equipment, but since the warrant there was so far short of

traditional fourth amendment standards, the case could be re-

solved on the basis of a straightforward fourth amendment analy-

sis. Thus, Lo-Ji gave this Court no occasion to explore the inter-

face between first and fourth amendment principles.

12

amendment injury and to deter similar violations in the

future, the fruits of the searches and seizures authorized

by those warrants should have been suppressed. The writ

which petitioner seeks should therefor issue.

Respectfully submitted,

ROGER C. SPAEDER

ROGER E. ZUCKERMAN

RONALD R. MASSUMI

ZUCKERMAN, SPAEDER, TAYLOR

& KOLKER

1800 M Street, N.W.

Suite 375 North

Washington, D.C. 20036

202/223-8606

Counsel for Petitioner

APPENDIX

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APPENDIX

CONTENTS OF APPENDIX AND EXPLANATORY NOTE

set forth and explained as follows:

1.

Order of the Supreme Court of Virginia Denying

Writ of Certiorari to the Circuit Court of Fairfax

County, January 21, 1981 .220..00o...eeecc cece eeeeeeeeeeeeeee

Order Denying Defendant’s Motion to Suppress

and Judgment of the Circuit Court of Fairfax

Ie I Bi I isa shin ns scncecierensecdinsceteissectoonnone

Relevant portions of the oral rulings of the Gen-

eral District Court of Fairfax County concerning

the suppression issue and denying defendant’s mo-

tion to suppress, Transcript, December 17, 1979,

pp. 74-77, (Conrad Waters, J.) .2...0......2ecccceecceeeeeeee

As an aid to the Court, the contents of this Appendix are

8a

* So as to conserve space, this appendix contains the order

and judgment pertaining to one of the twenty films adjudged

obscene. The order and judgment reproduced is representa-

tive of, and except for the case number notation and amount

of the fine specified, identical to each of the nineteen others

rendered by the Circuit Court on May 22, 1980.

".

2a

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Wednesday

the 21st day of January, 1981.

Record No. 801322

Circuit Court Nos. 31295 through 31301, 31304,

31309 through 31311, 31314, 31317, 31319,

31321 through 31324, 31329 and 31330

CROATAN Books, INC.,

Appellant,

against

COMMONWEALTH OF VIRGINIA,

Appellee.

From the Circuit Court of Fairfax County

Finding no reversible error in the judgments com-

plained of, the court refuses the petition for appeal filed

in the above-styled case.

A Copy,

Teste:

ALLEN L. Lucy

Clerk

By: /s/ [Illegible]

Deputy Clerk

8a.

VIRGINIA:

IN THE CIRCUIT COURT

OF FAIRFAX COUNTY

#81295

2

COMMONWEALTH OF VIRGINIA

vs.

CROATAN Books, INC.

Appeal—Possession of an obscene film

with intent to rent

This 22nd day of May, 1980, came the Commonwealth,

by her Attorney, and the Defendant, CROATAN BOOKS,

INC., by its Counsel, Roger Zuckerman.

Thereupon, the Court Reporter was sworn.

Whereupon, the Court heard further argument on

Counsel for the Defendant’s motion to suppress, which

motion the Court denied.

This case having come on this day for imposition of

sentence, it is therefore, ADJUDGED and ORDERED

that the Defendant pay a fine of $1,000.00 and the costs

of this case.

Whereupon, Counsel for the defendant made a motion

to suspend payment of said fine pending an appeal, which

motion the Court denied.

/s/ [Illegible]

Judge

A Copy Teste:

JAMES E. HOOFNAGLE

Clerk

[SEAL]

By: /s/ Jessie M. Clarke

Deputy Clerk

’>

4a,

RELEVANT PORTIONS OF THE ORAL

RULINGS OF THE GENERAL DISTRICT COURT

OF FAIRFAX COUNTY

CONCERNING THE SUPPRESSION ISSUE AND

DENYING DEFENDANT’S MOTION

TO SUPPRESS, TRANSCRIPT,

DECEMBER 17, 1979, pp. 74-77

(Conrad Waters, J.)

First of all, I find it was not a general warrant. The

warrant itself, I find it was properly executed, both

warrants....

& e a *

. . . I’m denying all your grounds for suppressing the

evidence seized, but I want to know whether those films

can be taken off one projector and put on another, and,

if so, my order is that all projectors but one, all coin

boxes but one, be returned. No films. .

The placards and doors, if pictures can be taken, it’s far

better or of equal weight in my opinion to have the pic-

tures and testimony going with those pictures than to

have doors, or, in any event, keep one door with one

placard, but I’m sure the testimony can go to the others

hopefully, depending on what your case is like, your

testimony could do the rest.

I think that the volume coming out of these places to the

point that I think it comes close to one of these cases

where it’s shutting down the business, and there’s no

outstanding order of a court that I know of to shut down

their business; when that happens, then that’s what you

do if you’re executing that order.

So my ruling is that I deny the motion to suppress with

the comments that I’ve made in the future, both as to

the warrants, as to the people, as to where they go.

I will grant the motion to return if it can be shown to

me, and I would expect that somebody could do that, to-

5a

day or whenever, that that film, continuous film, can be

threaded into one spool, put in another, and, at that time,

and I want every—you’ve got numbers of them, if you

get numbers, brand names, photos, fine; then I think let’s

return the projectors and the doors and mirrors and

things like that that you have photographic evidence now,

and I think with testimony that that will be sufficient.