Opposition Brief — Arkansas v. Baird

ViliG@-suprefmie LOUTL, Usa

FILED

| JAN 4 1985 |

Prenat STE VAS |

SAP eae ae

No. 84-643

IN THE

SUPREME COURT OF THE

UNITED STATES

October Term, 1984

STATE OF ARKANSAS PETITIONER

VS.

RANDY LEWIS BAIRD

HENRY EDWARD HEIMEYER

and TERRY L. FORGY RESPONDENTS

ON PETITION FOR WRIT OF CERTIORARI

TO THE ARKANSAS COURT OF APPEALS

RESPONDENT TERRY FORGY'S BRIEF IN

OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE ARKANSAS COURT OF APPEALS

ARTHUR M. SCHWARTZ. PC

Arthur M. Schwartz

1650 Market Street

Denver Colorado SOZO?

~~

QUESTIONS PRESENTED FOR REVIEW

I.

WHETHER THE WARRANTLESS SEIZURE OF FORTY-

SEVEN PRESUMPTIVELY PROTECTED MAGAZINES

WITHOUT ANY PRIOR JUDICIAL EXAMINATION

INTO THE ISSUE OF OBSCENITY WAS AN UNCON-

STITUTIONAL PRIOR RESTRAINT AND SEIZURE IN

VIOLATION OF THE RESPONDENTS’ RIGHTS GUAR-

ANTEED BY THE FIRST, FOURTH AND FOUR-

TEENTH AMENDMENTS TO THE UNITED STATES

CONSTITUTION

WHETHER THE INVENTORY LIST OF THE TITLES

OF FORTY-SEVEN PRESUMPTIVELY PROTECTED

MAGAZINES SEIZED UNLAWFULLY DURING A WAR-

RANTLESS SEARCH COULD CONSTITUTIONALLY BE

ADMITTED AS DERIVING FROM AN INDEPENDENT

SOURCE

TABLE OF CONTENTS

SR ae Gey yy | en te we ae ar

a SIE PAT ESE 8 on ce cette as iv

SEAS REIT COU DERE SOPNES 6 on kc n da seek eee wemas vi

REASONS FOR DENYING THE PETITION FOR

SEER PUPRPUNEE ca an 6s hiGd a 0 VAN See cee eT l

I. THE WARRANTLESS SEIZURE OF FORTY-

SEVEN PRESUMPTIVELY PROTECTED

MAGAZINES BASED UPON THE POLICE

OFFICERS’ DETERMINATION OF

OBSCENITY SOLELY FROM THE COVERS

OF THE MAGAZINES WAS A GROSS

VIOLATION OF THE RESPONDENT'S

RIGHTS GUARANTEED BY THE FIRST.

FOURTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES

CAIPWOUEER SOON s uhie cnn veedet sede sande e ue l

A. The Warrantless Seizure of Forty-Seven

Magazines, Many of Which Were the Only

Copy Available at the Bookstore, Was An

Impermissible Prior Restraint in Violation of

B. The Warrantless Seizure of Forty-Seven

Magazines Was An Unreasonable Seizure in

Violation of the Fourth Amendment to the

United States Constitution ................... g

If. THE INVENTORY LIST OF THE TITLES OF

FORTY-SEVEN MAGAZINES UNLAWFULLY

SEIZED IS NOT ADMISSIBLE SINCE THE

PETITIONER HAS FAILED TO MAKE ANY

SHOWING THAT THE LIST WAS OBTAINED

FROM AN INDEPENDENT SOURCE

BS & PO) 8) Gira

APPENDIX

Testimony of Officer Bill Moore at

Hearing on Respondent's Motion to Suppress,

ee ke sewed a 4 kc} xn a ss

Al

TABLE OF AUTHORITIES

CASES:

A Quantity of Books v. Kansas,

378 U.S. 205, 12 L.Ed.2d 809, 84 S.Ct. 1723

NTIS nec e Ue aa tiean as akan ena abcess

Bantam Books. Inc. v. Sullivan,

372 US. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963) ...

Blount v. Rizzi,

400 U.S. 410, 91 S.Ct. 423. 27 L.Ed.2d 498

RE e a eeu aoe oe eter T ee ee

Chimel v. California.

395 U.S. 752, 23 L.Ed.2d 685, 89 s.Ct. 2034

(aaNet sy Oe Fer AA Aad Bam haga ti PR Ai ias teak A et I

Coolidge v. New Hampshire,

403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022

(1971) reh. denied, 404 U.S. 874

Heller v. New York.

413 U.S. 483, 37 L.Ed.2d 745, 93 S.Ct. 2789

Katz v. United States.

389 U.S. 347, 19 L.Ed.2d 376, 88 SCt. 507

(1968)

Lee Art Theater v. Virginia,

392 U.S. 636, 20 L.Ed.2d 1313, 88 S.Ct. 2103

(1968)

Lo-Ji Sales, Inc. v. New York.

442 U.S. 319, 60 L.Ed.2d 920, 99 S.Ct. 2319

i. | RRR eer

Marcus v. Search Warrant.

367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127

PE Peace tons eee eas 2, 3, 4, 5, 6, 7

—

Ir

. 16,17

Miller v. California.

413 U.S. 15. 37 L.Ed.2d 419. 93 S.Ct. 2607. reh

denied. 414 U.S. 881 (1973) ......... . ; oe

Mincey v. Arizona,

137 U.S. 385, 57 L.Ed.2d 290, 98 S.Ct. 2408

1978)

LO

Nix v. Williams.

U.S. 81 L.Ed.2d 377. 104 S.Ct.

Pr AS ae ol ed eae wantank. ee eee eee ee

Roaden v. Kentucky,

113 U.S. 497, 37 L.Ed.2d 757, 93 S.Ct. 2796

(1973) . vn, 4, 5, 6, 8, 9, 16, 17

Segura v. United States,

US. 82 L.Ed.2d 599, 104 S.Ct. 3380

Southeastern Promotions, Ltd. v. Conrad,

120 U.S. 546. 43 L.Ed.2d 448, 95 S.Ct. 1239

1 eee ce cll nines

Speiser v. Randall.

357 U.S. 513, 2 L.Ed.2d 1460, 78 S.Ct. 1332

(1958) . 2

Stantord v. Texas,

379 U.S. 476, 13 L.Ed.2d 431, 85 S.Ct. 506

(1975) ro Sg Be ee tee err ae ee ee - a.

Terry v. Ohio,

392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868

SEED ng oS ee AS See RRC Sm

Zurcher v. Stantord Daily.

136 U.S. 547, 56 L.Ed.2d 525, 98 S.Ct. 1970

SERMee Sy oe ai oe ee ee ark ee eee 6. 12

STATUTES;

Ark. Stat. Ann. Section 41-3553 (Repl. 1977) . vi, vi. I

STATEMENT OF THE CASE

Respondents, Terry Forgy, Randy Baird and Henry

Heimeyer were charged with violation of Ark. Stat. Ann.

Section 41-3553 (Repl. 1977), which prohibits the sale and

circulation of obscene periodicals. They were convicted in

Texarkana Municipal Court and appealed to the Circuit

Court of Miller County. After a trial de novo before a jury,

they were again convicted. The Arkansas Court of Appeals

affirmed the conviction of Forgy, and reversed the convic-

tions of Baird and Heimeyer. From these reversals, the

State petitioned this Court for a writ of certiorari,

On February 28, 1983, a Texarkana police major went

to Respondent Forgy’s bookstore to ostensibly check for an

occupational tax permit. The major observed materials he

believed to be obscene and returned to the police station

where he ordered a police officer to purchase some of these

materials. After filling out membership forms and paying

a membership fee, the officer purchased two magazines.

At this point, police officers met with Texarkana pros-

ecuting attorneys to discuss the proper means in which to

arrest the Respondent and seize allegedly obscene mate-

rials. At the meeting it was decided that police officers

would obtain an arrest warrant for the Respondent, and

upon his arrest, seize a copy of each book and magazine

that in the determination of the officers was obscene. At

this meeting, the prosecutors and the police officers also

determined that the seizure of these allegedly “obscene”

books could be justified under the pretext of the “plain

view doctrine.” (See Appendix, pp. 22-25, 27, 36-37, 40-41).

Pursuant to this plan, the police officers obtained an

arrest warrant for the Respondent Forgy issued by a local

court clerk. At no point did a neutral and detached magis-

trate determine if probable cause existed for a determina-

tion of obscenity of the material in question or for the

Respondent’ arrest. Without any search warrant, the

officers proceeded to Respondent's bookstore and seized

forty-seven books and magazines from the bookstore that

they determined were obscene based solely upon the cover

of those materials. (Appendix, p. 7). Many of these maga-

zines were the only copy of that publication available for

distribution from Respondent Forgy’s establishment.

(Appendix, p 7) During the course of the seizure, the

officers made an inventory of the items seized and

arrested two of Respondent’s Forgy’s employees,

Respondents Randy Baird and Henry Heimeyer.

All Respondents were charged with violations of Arkan-

sas Stat. Ann., Section 41-3553 (Repl. 1977), which prohib-

its the sale and circulation of obscene periodicals. In the

Circuit Court, the Respondents filed a motion to suppress

all materials. This motion was denied. However, at trial,

only a list of the titles of the forty-seven magazines seized

were introduced into evidence. After Respondent Forgy'’s

conviction in the trial, he brought an appeal to the Arkan-

sas Court of Appeals on six issues. The Court of Appeals

refused to consider four of these issues on the basis that

Korgys counsel at trial had failed to object timely during

trial. (See p. A5 of Petition for Writ of Certiorari). These

issues concerned: (1) the prior repeal of the statute under

which Forgy was convicted; (2) the defective jury charge

concerning the definition of obscenity; (3) the admission of

the irrelevant and highly prejudicial list of titles of the

forty-seven magazines seized; and (4) the prosecuting

attorneys comments about the Respondent’ decision not

to testify during closing argument.

Qn the two issues remaining, the Court of Appeals

held: (1) white the seizure of the list of forty-seven maga-

zine titles was unconstitutional under the authority of

Roaden v. Kentucky, A413 US. 497, 37 L.Ed.2d 757, 98 S.Ct

2796 (1973), it was harmless error beyond a reasonabte

doubt with respect to Respondent Forgy; and (2) the trial

court did not abuse its discretion in refusing to admit as

Vu

evidence of contemporary community standards another

adult film plaving in Texarkana, Arkansas

The State of Arkansas has petitioned this Court for a

writ of certiorari on the basis that: (1) the warrantiess

seizure of the forty-seven books on February 28, 1983 was

not a violation of the First, Fourth and Fourteenth

Amendments to the United States Constitution: and (2)

the admission into evidence of the inventory list of the

titles of the forty-seven magazines seized without a search

warrant, Was constitutional because this list cou/d have

been derived from an independent source.

The Respondent submits that these assertions are

wholly contrary to the existing body of case law decided by

this Court. In essence, the State of Arkansas Is asking this

Court to reverse many of its own decisions that form the

basic foundation for two fundamental components of the

Bill of Rights, the First and Fourth Amendments to the

United States Constitution.

Vill

REASONS FOR DENYING

THE PETITION FOR CERTIORARI

THE WARRANTLESS SEIZURE OF FORTY

SEVEN PRESUMPTIVELY PROTECTED MAGA.

ZINES BASED UPON THE POLICE OFFICERS

DETERMINATION OF OBSCENITY SOLELY

FROM THE COVERS OF THE MAGAZINES WAS

A GROSS VIOLATION OF THE RESPONDENT'S

RIGHTS GUARANTEED BY THE FIRST, FOURTH

AND FOURTEENTH AMENDMENTS TO THE

UNPPED STATES CONSTITUTION

A. The Warrantless Seizure of Forty-Seven Magazines,

Many of Which Were the Only Copy Available at the

Bookstore, Was An Impermisstble Prior Restraint in

Violation of Respondents First Amendment Rights

Respondents were charged and convicted of violations

of Ark. Stat. Ann. Section 41-3553 (Repl. Vol. 1977), prohib-

iting the sale of obscene materials. It is undisputed that

obscenity is not speech protected by the First Amendment.

Miller v. California, 418 US. 15, 37 L.Ed.2d 419, 938 S.Ct.

2607, reh. dented, 414 U.S. 881 (1973). However, it 1s

equally well established that all speech material is’ pre-

sumptively protected by the Constitution until a final

judicial determination of obscenity is made. Heller vo. New

York, 413 US. 483, 37 L.Ed.2d 745, 93 S.Ct. 2789; Roaden

v. Kentucky, 413 US. 496, 387 L.Ed.2d 757, 98 S.Ct. 2796

(1973). *|Tlhe First Amendment requires that procedures

be incorporated that ‘ensure against the curtailment ct

constitutionally protected expression, which is often sepa-

rated from obscenity oniy by a dim and uncertain line.”

Blount v. Rizzi, 400 US. 410, 416, 91 S.Ct. 428, 428, 27

L.Ed.2d 498 (1971) quoting Bantam Books, Inc. v. Sullivan,

$72 U.S. 58, 66, 83. 8.Ct. 631, 9 L.Ed.2d 584 (1963). “| T]he

line between speech unconditionally guaranteed and

speech which may be regulated, suppressed or punished is

finely drawn. ... The separation of legitimate from illegiti-

mate speech calls for ... sensitive tools ...” Speiser v.

Randall, 357 U.S. 513, at 525, 2 L.Ed.2d 1460, 78 S.Ct.

1332 (1958). As such, “Any system of prior restraint

‘comes to this Court bearing a heavy presumption against

its constitutional validity.” Southeastern Promotions, Ltd.

vu. Conrad, 420 U.S. 546, 43 L.Ed.2d 448, 95 S.Ct. 1239

(1975) quoting Bantam Books, Inc. v. Sullivan, supra, 372

U.S. at 70.

In the instant case, the police officers not only failed to

employ the required sensitive tools in suppressing pre-

sumptively protected speech materials, but, in fact, blud-

geoned all significance from the guarantees embodied by

the First Amendment. Here, the police engaged in the

seizure of forty-seven magazines, without even attempting

to procure a search warrant. The officers seized these

magazines solely on the basis of their own determination

of obscenity without consulting any neutral magistrate on

that issue. In making this determination of obscenity, the

police officers looked only at the cover of these magazines,

without any examination of the magazines as a whole.

Aithough only one copy of each magazine was seized, in

many cases that was the sole copy of that magazine within

Respondent Forgy’s bookstore. As a result, the distribution

of such magazines was, in fact, effectively stopped without

any prior judicial determination of obscenity.

This Court in a consistent line of cases, has repeatedly

and unequivocally rejected such sweeping and harsh treat-

ment of all materials presumptively protected by the First

Amendment. The Court in Marcus v. Search Warrant, 367

U.S. 717 (1961), held that a warrant for the seizure of

allegedly obscene books could not be “issued on the

strength of the conclusory assertions of a single police

officer, without any scrutiny by the judge of any materials

considered by the complainant to be obscene” 367 U.S. at

731-732. There, the Court stated:

2

... [T]here was no step in the procedure before

seizure designed to focus searchingly on the question

of obscenity. ...[D]iscretion to seize allegedly obscene

materials cannot te confided to law enforcement

officials without greater safeguards than were here

operative. Procedures which sweep so broadly and

with so little discrimination are obviously deficient

in techniques required by the Due Process Clause of

the Fourteenth Amendment to prevent erosion of

constitutional guarantees. /d. at 732-733 (Footnotes

omitted and emphasis added).

The Court went on to find that the illegal seizure in

Marcus had imposed a prior restraint upon material pre-

sumptively protected by the First Amendment:

But there is no doubt that an effective restraint —

indeed the most effective restraint possible— was

imposed prior to hearing on the circulation of the

publications in this case, because all copies on which

the police could lay their hands were physically

removed from the newsstands and from the prem-

ises of the wholesale distributor. ... Their ability to

circulate their publications was left to the chance of

securing other copies, themselves subject to mass

seizure under other such warrants. The public's

opportunity to obtain the publications was thus

determined by the distributor's readiness, and abil-

ity to outwit the police by obtaining and selling

other copies before they in turn could be seized. In

addition to its unseemliness, we do not believe that

this kind of enforced competition affords a reason-

able likelihood that nonobscene publications,

entitled to constitutional protection, will reach the

public. A distributor may have every reason to

believe that a publication is constitutionally pro-

tected and will be so held after judicial hearing, but

his belief is unavailing as against the contrary judg-

ment of the police officer who seized it from him.

3

(Footnotes omitted and emphasis added). 567 U.S.

at 736-737.

See also A Quantity of Books v. Kansas, 378 U.S. 205, 12

L.Ed.2d 809, 84 S.Ct. 1728 (1964).

Lee Art Theater v. Virginia, 392 U.S. 636, 20 L.Ed 2d

1513, 88 S.Ct. 2103 (1968) invalidated the seizure of a film

from a commercial theatre regularly open to the public.

Kollowing Marcus, the Court stated:

/thhe procedure under which the warrant issued

solely upon the conclusory assertions of the police

officer without any inquiry by the justice of the peace

into the factual basis for the officers conclusions was

nota procedure “designed to focus searchingly on the

question of obscenity” Id. [Marcus v. Search War

rant,, supra/ at 732, 6 L.Ed.2d 1127, and therefore

fell short of constitutional requirements demanding

necessary sensitivity to freedom of expression. Lee

Art Theatre v. Virginia, 392 U.S. at 637. (Emphasis

added).

The reesoning in these decisions reached its culmina-

tion in Roaden v. Kentucky, 413 U.S. 496, 37 L.Ed.2d 757.

93 S.Ct. 2796 (1973). The facts in Roaden, strikingly simi-

lar to the case at bar, involved the seizure of a film by a

local sheriff, based upon alleged obscenity, after he had

observed the film in its entirety. It was undisputed:

(a) that the sheriff had no warrant when he made

the arrest and seizure, (b) that there had been no

prior determination by a judicial officer on the ques-

tion of obscenity, and (c) that the arrest was based

solely on the sheriffs observing the exhibition of the

film. Roaden v. Kentucky, 413 U.S. at 498-499.

The defendant moved to suppress the film, which motion

was denied. At trial, a jury convicted the defendant of

4

exhibiting an obscene film. The Supreme Court unan-

imously reversed the conviction.

In holding that the film must be suppressed, Chief

Justice Burger in writing for the majority, began the

analysis by stating:

The seizure of instruments of a crime, such as a

pistol or a knife. or ‘contraband or stolen goods or

objects dangerous in themselves, (citation omitted),

are to be distinguished from quantities of books and

movie films when a court appratses the reasonable-

ness of the seizure under Fourth or Fourteenth

Amendment standards. Roaden v. Kentucky, supra,

at 502. (Emphasis added).

After a discussion of Marcus, A Quantity of Books and Lee

Art Theatre in relation to this principle the Court stated:

The common thread of Marcus, A Quantity of Books

and Lee Art Theatre is to be found in the nature of

the materials seized and the setting in which they

were taken. See Stanford v. Texas, 379 U.S. 476.

486, 13 L.Ed.2d 431, 85 S.Ct. 506 (1975). In each

case the material seized fell arguably within First

Amendment protection, and the taking brought to an

abrupt halt an orderly and presumptively legitimate

distribution or exhibition, Seizing a film then being

exhibited to the general public presents essentially

the same restraint en expression as the seizure of

all the books in a bookstore. Such precipitate action

hy a police officer. without the authority of a con

stitutionally sufficient warrant, ts plainly a form of

prior restraint and ts, tn those circumstances, Unrea

sonable under Fourth Amendment standards. The

serzure ts unreasonable, not simply because it would

have been easy to secure a warrant. but rather

hecause prior restraint of the right of expression,

whether by books or films, calls for a higher hurdle

in the evaluation of reasonableness. The setting of

the bookstore or the commercial theater, each pre-

sumptively under the protection of the First Amend-

ment, invokes such Fourth Amendment warrant

requirements because we examine what is “‘unrea-

sonable’ in the light of the values of freedom of

expression. As we stated in Stanford v. Texas, supra:

‘In short ... the constitutional requirement that

warrants must particularly describe the “things to

be seized” is to be accorded the most scrupulous

exactitude when the “things” are books, and the basis

for their seizure is the ideas which they contain. See

Marcus v. Search Warrant, 367 U.S. 717, 6 L.Ed.2d

1127, 81 S.Ct. 1708; A Quantity of Books v. Kansas,

378 U.S. 205, 12 L.Ed.2d 809, 84 S.Ct. 1723. No less

a standard could be faithful to First Amendment

freedoms. The constitutional impossibility of leaving

the protection of those freedoms to the whim of the

officers charged with executing the warrant is dra-

matically underscored by what the officers saw fit to

seize under the warrant in this case. 379 U.S. at

485, 13 L.Ed.2d 431. (Footnotes omitted and empha-

sis added).

Against this backdrop this Court concluded in no uncer-

tain terms that:

If, as Marcus and Lee Art Theatre held, a warrant

for seizing allegedly obscene material may not issue

on the mere conclusory allegations of an officer, a

fortiort, The officer may not make such a seizure

with no warrant at all. Roaden v. Kentucky, supra,

at 506. (Emphasis added).

The vitality of the Roaden decision has remained

intact. In Zurcher v. Stanford Daily, 436 US. 547 (1978)

the United States Supreme Court in Justice White's major-

ity opinion reiterated these principles:

6

Where presumptively protected materials are

sought to be seized, the warrant requirement should

be administered to leave as little as possible to the

discretion or whim of the officer in the field. Simi-

larly, where seizure is sought of allegedly obscene

materials, the judgment of the arresting officer

alone is insufficient to justify issuance of a search

warrant or a seizure without a warrant incident to

* arrest. The procedure for determining probable

cause must afford an opportunity for the judicial

officer to ‘focus searchingly on the question of

obscenity’ (Citations omitted).

More recently, the Court unanimously rejected the sei-

zure of allegedly obscene materials pursuant to an open-

ended search warrant in Lo-Ji Sales, Inc. v. New York, 442

U.S. 319, 60 L.Ed.2d 920, 99 S.Ct. 2319 (1979).

These consistent, unequivocal statements indicate that

the questions presented in the Petition for Certiorari have

been resolved by this Court many times over. Moreover,

Marcus and Roaden explicitly state the minimum constitu-

tional requirements for such a seizure of presumptively

protected material which include a determination of proba-

ble cause by a neutral magistrate prior to seizure, followed

by a prompt post-seizure judicial determination of the

obscenity issue.

None of these procedures were followed in this case.

The police officers never attempted to obtain a search

warrant. No determination of probable cause was ever

made by any neutral magistrate. Instead, the officers

relied only on their own unfettered discretion in determin-

ing which magazines were obscene. The Petitioner

attempts to justify this complete disregard of the required

procedures by asserting that the police officers used “fairly

objective standards” in the determination of obscenity.

However, Marcus explicitly required far more than just

“fairly objective standards” employed by police officers in

~]

requiring a neutral magistrate to focus “searchingly on the

issue of obscenity.”

In addition, precisely the same type of prior restraint

exists in the instant case as in Roaden. While Petitioner

takes pains to point out that only one copy of each maga-

zine was seized, it neglects to state that, in many cases,

the single copy seized was, in fact, the only copy in

Respondent’s bookstore. Thus, contrary to Petitioner's

assertions, the seizure, in fact, “brought to an abrupt halt

ithe] orderly and presumptively legitimate distribution or

exhibition” of many magazines sold at Respondent's estab-

lishment. Roaden, 413 U.S. at 504.

However, the constitutional violations did not end

there. The police officers did not even attempt to comply

with the well established three part test for obscenity

enunciated by this Court in Miller v. California, 413 U.S.

16, at 431 (1973). This test is:

(a} whether ‘the average person, applying contempo-

rary community standards’ would find that the

work, taken as a whole, appeals to the prurient

interest, (b) whether the work depicts or describes,

in a patently offensive way, sexual conduct specifi-

cally defined by the applicable state law; and

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

serious literary, artistic, political or scientific value.

Miller v. California, 413 U.S. at 431. (Citations

omitted).

Here, the police officers seized al! materials from the

bookstore that appeared to be sexually explicit solely on

the basis of the cover of the magazine. Absolutely no effort

was made by the officers to examine these presumptively

protected materials “as a whole” making it impossible for

the police to make a proper determination of the obscenity

of these magazines. Even the sheriff in Roaden viewed the

entire film before he made the warrantless seizure that

&

was rejected by this Court.

It is almost inconceivable how Petitioner can honestly

argue that the seizure of presumptively protected speech

materials in the instant case was reasonable. This Court

has repeatedly and unequivocally enunciated the control-

ling principles of such seizures. Here, the police officers

completely failed to apply these “sensitive tools” required

by this Court in seizing these magazines and instead,

created their own procedures which they applied to the

Respondent with the sublety of a sledgehammer. As such,

this seizure presents an even more egregious factual situa-

tion than that rejected by this Court unanimously in

Roaden v. Kentucky. Petitioner is requesting this Court, in

essence, to set aside almost the entire body of First

Amendment law that has been so carefully crafted by this

Court for decades. For these reasons, the Petition for

Certiorari should be denied.

B. The Warrantless Seizure of Forty-Seven Magazines

Was an Unreasonable Seizure in Violation of the

Fourth Amendment to the United States Contitution

The requirements of the Fourth Amendment must be

applied with “the most scrupulous exactitude” where the

items sought to be seized are presumptively protected by

the First Amendment. Stanford v. Texas, supra; Roaden v.

Kentucky, supra. Thus, even if the warrantless seizure of

magazines from Respondents bookstore was not a prior

restraint in violation of the First Amendment, it would

still constitute an unreasonable search in violation of the

Fourth Amendment.

The Fourth Amendment proscribes all unreasonable

searches and seizures, and it is a cardinal principle

that ‘searches conducted outside the judicial process,

without prior approval by judge or magistrate, are

per se unreasonable under the Fourth Amendment

subject only to a few specifically established and

y

well-delineated exceptions. Katz v. United States,

389 U.S. 347, 357 (1968); Mincey v. Arizona, 437

U.S. 385, 390 (1978) (Footnotes omitted and empha-

sis added).

Petitioner attempts to justify the seizure by asserting

that the magazines were in plain view. However, there are

two significant limitations to the “plain view” doctrine. The

first of these is:

... that plain view alone is never enough to justify

the warrantless seizure of evidence. This is simplv a

corollary of the familiar principle... that no amount

of probable cause can justify a warrantless search

absent ‘exigent circumstances’ ... |E]ven where the

object is contraband, this Court has repeatedly

stated and enforced the basic rule that police may

not enter and make a warrantless seizure. (Cita-

tions omitted). Coolidge v. New Hampshire, 403 U.S.

443, at 468, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1971) reh.

denied 404 U.S. 874.

Petitioner argues that exigent circumstances existed

here since due to the proximity of Respondent’s bookstore

to the state line, evidence could be destroyed “by simply

walking across the street.” Petitioners Argument, p. 5.

Petitioner contends, in essence, that the Fourth Amend-

ment simply does not apply to businesses or residences

that are located within sixty feet of the state line. This

argument is patently absurb.

Moreover, this Court has frequently stated that “a war-

rantless search must be strictly circumscribed by the

exigencies which justify its initiation.” Mincey v. Arizona,

437 U.S. 385, at 393, 37 L.Ed.2d 290, 98 S.Ct. 2708 (1978)

quoting Terry v. Ohio, 392 U.S. 1, 25-26, 20 L.Ed.2d 889, 88

5.Ct. 1868 (1968). Here, no exigency ever existed to initiate

this warrantless search. The manufactured justification

10)

for the warrantless search presented by Petitioner, after

the fact, cannot validate this warrantless seizure that was

unreasonable from its outset. Moreover, this argument is

not supported by the facts since an officer who partici-

pated in the seizure testified during the suppression hear-

ing that he never considered the possibility that evidence

would be destroyed by crossing the state line. (Appendix,

p. 15).

The second limitation on the “plain view” doctrine ts

that the discovery of evidence in plain view must be

inadvertent.

But, where the discovery is anticipated, where the

police know in advance the location of the evidence

and intend to seize it, the situation is altogether

different. The requirement of a warrant to seize

imposes no inconvenience whatsoever, or at least

none which is constitutionally cognizable in a legal

system that regards warrantless searches as ‘per se

unreasonable in the absence of ‘exigent circum-

stances. Coolidge v. New Hampshire, supra, at 470.

(Emphasis added).

The seizure in the instant case cannot in any way be

characterized as inadvertent. Here, police officers met with

Texarkana prosecutors prior to the seizure to plan the

seizure of items from Respondent's bookstore. Moreover,

there can be no question that the officers were aware they

would find the seized magazines at the bookstore. (Appen-

dix, pp. 7-8).

Petitioner also apparently tries to justifV the seizure as

incident to a lawful arrest since the officers had obtained a

warrant for the arrest of Respondent Forgy. However, in

cases involving presumptively protected speech materials,

probable cause for an arrest cannot exist without a prior

judicial determination of obscenity. The determination of

probable cause for arrest in such cases cannot be left to

1]

the discretion of a police officer. 77T/he judgment of an

arresting officer alone ts insufficient to Justify issuance of a

search warrant or a seizure without a warrant incident to

arrest,” where seizure is sought of presumptively protected

materials. Zurcher v. Stanford Daily, supra, at 564.

(Emphasis added). Moreover, the seizure of forty-seven

magazines cannot be justified under Chimel v. California,

395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034 (1969) since

there was no imminent threat to the police officers’ safety

and no indication that any Respondent intended to destroy

evidence.

Petitioner also suggests that Respondent Forgy had no

legitimate expectation of privacy against government

intrusion since his bookstore was open to the public. How-

ever, this argument was rejected in Lo-Ji Sales, Inc. v. New

York, 442 U.S. 319, 60 L.Ed.2d 920, 99 S.Ct. 2379 (1979).

There the Chief Justice, in writing for a unanimous Court,

stated:

The suggestion is that by virtue of its display of the

items at issue to the general public in areas of its

store open to them, petitioner had no legitimate

expectation of privacy against governmental intru-

sion, and that accordingly no warrant was needed.

But there is no basis for the notion that because a

retail store invites the public to enter, it consents to

wholesale searches and seizures that do not conform

to Fourth Amendment guarantees. (Citations omit-

ted) Lo-Ji Sales, Inc. v. New York, 442 U.S. at 329.

As seen, every reason Petitioner has advanced to justify

this warrantless seizure of presumptively protected speech

materials is without merit under established Fourth

Amendment principles. Thus, not only did this warrantless

seizure make a mockery of First Amendment protections,

‘ut it also clearly violated the Fourth Amendment. There-

tore, the Arkansas Court of Appeals correctly held the

warrantless seizure of magazines from Respondent's book-

store was unconstitutional.

THE INVENTORY LIST OF THE TITLES OF

FORTY-SEVEN MAGAZINES UNLAWFULLY SEI-

ZED IS NOT ADMISSIBLE SINCE THE PETI-

TIONER HAS FAILED TO MAKE ANY SHOWING

THAT THE LIST WAS OBTAINED FROM AN

INDEPENDENT SOURCE

Petitioner contends that the inventory list of the titles

of the forty-seven magazines seized without a warrant

should not be excluded from evidence. As authorivy for

this contention, Petitioner cites Nix v. Williams,

U.S. , 81 L.Ed.2d 377, 104 S.Ct.

(1984); and Segura v. United States, U.S. ,

82 L.Ed.2d 599, 104 S.Ct. 3380 (1984) which enunciated,

respectively, the related concepts of “inevitable discovery”

and “independent source” in connection with the exclusion-

ary rule. Ignoring the fact that the relevance of the list of

magazine titles to these obscenity prosecutions is highly

questionable, Petitioner’s reliance on these cases is

misplaced.

In both of these cases, this Court had a solid founda-

tion of facts upon which to make the determination that

certain evidence could be admitted. Here, however, Peti-

tioner is asking to admit into evidence a list of titles based

solely on the basis of speculation concerning what might

have been.

Segura v. United States, supra, enunciated the inde-

pendent source exception to the exclusionary rule. It must

be noted that the Court stated at the outset of the opinion

that “Our disposition of both questions is carefully lim-

ited” 82 L.Ed.2d at 604. Segura held that evidence seized

pursuant to a valid search warrant was not tainted by an

13

earlier illegal entry into the property. The factual situation

underlying this decision was well established:

None of the information on which the warrant was

secured was derived from or related in any way to

the initial entry into petitioners’ apartment; the

information came from sources wholly unconnected

with the entry and was known to the agents well

before the initial entry. No information obtained

during the initial entry or occupation of the apart-

ment was needed or used by the agents to secure

the warrant. /t is therefore beyond dispute that the

information possessed by the agents before they

entered the apartment constituted an independent

source for the discovery and seizure of the evidence

now challenged. This evidence was discovered the

day following the entry, during the search conducted

under a valid warrant; it was the product of that

search, wholly unrelated to the pricr entry. The

ralid warrant search was a ‘means sufficiently dis

tinguishable’ to purge the evidence of any ‘taint’

arising from the entry. Wong Sun, 371 U.S. at 488, 9

L.Ed.2d 441, 83 S.Ct. 407. Had police never entered

the apartment, but instead conducted a perimeter

stakeout to prevent anyone from entering the apart-

ment and destroying evidence, the contraband now

challenged would have been discovered and seized

precisely as it was here. (Footnotes omitted and

emphasis added). Segura v. United States, supra, 82

L.Ed.2d at 614-615

Thus, in Segura, a discrete division existed between the

unlawful police activities and the evidence seized pursuant

to a valid search warrant.

The inevitable discovery rule set forth in Nix v.

Williams also required a definite showing by the

government:

Fairness can be assured by placing the State and

the accused in the same positions they would have

been in had the impermissible conduct not taken

place. However, if the government can prove that the

evidence would have been obtained inevitably and,

therefore, would have been admiited regardless of

any overreaching by the police, there is no rational

basis to keep that evidence from the jury in order to

ensure the fairness of the trial proceedings.

(Emphasis added]. In that situation, the State has

gained no advantage at trial and the defendant has

suffered no prejudice. Indeed, suppression of the

evidence would operate to undermine the adversary

system by putting the State in a werse position that

it would have occupied without any police miscon-

duct. [Emphasis by Court}. Nix cv. Williams, 81

L.Ed.2d at 389-390.

Under this test, the government was required to prove that

the body of the murder victim wou/d have been inevitabty

discovered. In Nix the government met its burden of proof

by producing substantial evidence that was extensiveiv

discussed by the Court

In stark contrast to Naw and Segura, Petitioner in the

Instant case advances only speculation and sophistry to

support its argument. Here, the inventory list of titles is

not only connected to a blatantly illegal search, it is, in

fact. a manifestation of that unconstitutional conduct.

Absolutely no discrete division exists between the unlaw

ful police conduct and the evidence sought to be admitted.

There exists no “means sufficiently distinguishable’ to

purge the list of titles of any taint arising from the war-

rantless search. Segura, 82 L.ed.2d at 615

Petitioner has advanced no concrete evidence that the

list of titles wou/d mevitably have been obtained without

any illegalitv. Throughout its argument, Petitioner argues

that the list of tithes cou/d have been obtained lawfully

Ld

Petitioner advances no evidence that indicates that !t has

actually obtained a list of book titles at any time, and ever

used a list of titles to prosecute any individual for promot-

ing obscenity. As a result. this argument must fall since it

is based on nothing more than speculation about how the

police officers, in theory. cou/d have acted

Moreover, the use of such speculation significantly

damages the fairness rationale underlying the inevitable

discovery test as articulated in Nix. If the Court were to

adopt the position advanced by Petitioner, this fairness

analysis would become meaningless since the government

could obtain evidence illegally and justify it by creating a

purely hypothetical situation where the government cou/d

inevitably discover the evidence lawfully. That is exactly

what Petitioner seeks to do here

Therefore, the adoption of Petitioner's argument in the

instant case would destroy the sharp distinctions that are

made clear in the Segura and Nix opinions. Moreover, since

Petitioner cannot produce any evidence other than hypo-

theticals of what the police could have done, the argument

must fall. Indeed, Petitioner asserts that the list of titles

could have been used in obtaining a search warrant. How-

ever, it is clear from Marcus, Roaden, and the other cases

discussed supra, this list of titles alone would not be

sufficient to support a finding of probable cause for a

search warrant for any single magazine on the list. Peti-

tioner’s argument is. thus, anamolous since it seeks to

have admitted into evidence of the substantive offense, a

list of titles that could not even support a showing of

probable cause. Based on the arguments presented by

Petitioners on this issue, no significant reason exists for

this Court to grant the Petition for Certiorari

CONCLUSION

Rule 17.1 of the Rules of the Supreme Court states that

review on a writ of certiorari “will be granted only when

there are special and important reasons” for review. No

special and important reason exists in the instant case.

An unbroken line of cases from Marcus to Roaden and

beyond, clearly indicates that the procedures employed by

the police officers in dealing with presumptively protected

speech material in this case were constitutionally defi-

cient. Based on these decisions, there is little question

that the Arkansas Court of Appeals correctly held that the

seizure of the forty-seven magazines was unconstitutional.

Moreover, Segura and Nix present vastly different factual

situations from the instant case that justify the limited

independent source and inevitable discovery exceptions to

the exclusionary rule. In the instant case, Petitioner relies

solely on speculation to make Segura and Nix even argua-

bly applicable.

Therefore, Respondent Terry Forgy. respectfully

requests that this Honorable Court deny the State of

Arkansas’ Petition for Certiorari and grant any other relief

it deems fit to correct the gross constitutional violations

that occurred in this case.

Respectfully submitted,

°

ARTHUR M. SCI

Arthur M. Schwartz

1650 Market Street

Denver, Colorado SO2Z02

302 fF SO5 2500

‘ARTZ, PC

treat te -

MOTION TO SUPPRESS, JUNE 3, 1983

SGT. BILL MOORE,

called as a witness in behalf of the defendants, having first

been duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. LEE:

Q

A

Q

Q

Please state your name.

Sgt. Bill Moore.

Mr. Moore, on or about 4-13-83 were you working for the

Texarkana, Arkansas Police Department?

Yes, sir. | was.

Did you have occasion on that day to go to a place

known as State Line Books?

Yes, sir.

Could you tell the Court approximately what time you

arrived at those premises?

It must have been four o'clock in the afternoon. I'm

guessing from the time on my int _utory sheet says

5:05; approximately an hour before that.

So, your answer is approximately an hour before the

time on your inventory sheets

Just an approximate guess; | don’t know exactly what

time | checked out.

Officer, do you recall what happened when you first

walked into the premises?

Major Cowart was in the lead. | was behind—-I think I

was behind him; I'm not sure. Capt. Zane Gray, Lt.

Allen Hartshorn and Officer Billy Jones were also with

us, and I think | was behind Cowart; I can’t remember.

At that particular time, do you know whether or not

either of the officers were in possession of a search

warrant?

Al

A

Q

I wasn’t in possession of a search warrant, and [| don't

believe anybody else was.

What was your purpose for going to the book store?

To serve an arrest warrant on Terry L. Forgy.

Was it at any particular time prior to the seizure of the

materials explained to you and Mr. Forgy was not at

the store?

No.

Do you recall whether it was explained to any of the

other officers?

To my knowledge, no; I don’t know.

Presumably, Officer Moore, at some particular instance

you looked for Mr. Forgy, is that correct?

Uh-huh.

He was not there. is that correct?

He was not.

Do you recall where you looked for him?

Spoke to Mr. Baird, who was behind the counter.

So, it is not your contention, then, that upon entering

the store there was any reason to believe that Mr. Forgy

was hiding on the premises?

I wouldn't have known Mr. Forgy if he had come up and

punched me in the nose until | saw him later. I had

never laid eyes on the man.

Now, think carefully, Mr. Moore. Prior to entering the

store, anytime prior to entering the store, was the

discussion of seizing materials on the rack ever con-

ducted in your presence?

Yes.

By whom’?

Major Cowart, myself: I don't know if Sgt. Adcock was

present then or not.

When did this discussion take place?

We were trying to figure out the correct procedure on

making the arrest and seizing any material that under

the statute appeared obscene. We went to Mr

McDaniel’ office and consulted him and Kirk Johnson

both. Mr. McDaniel called somebody. If you want me to

A2

Q

A

Q

A

(

A

Q

A

assume, | will.

No, I'm not asking you to assume something.

Okay, he make a telephone call and obtained some legal

advice.

Mr. McDaniel is the deputy prosecutor for Miller

County, is that correct?

Right.

To your knowledge, no judge was ever consulted with

regard to these matters prior to the seizure, is that

correct?

Prior to the seizure?

Yes, sir.

We went to contact Judge Purifoy, and he directed us to

Mr. McDaniel and Kirk Johnson.

Did you, or did any of the other officers, ask Judge

Purifoy for a search warrant?

Oh, Lord. We were wanting to know what the legalities

were, whether we did need a search warrant if the

material was on the racks. Thats what we were trying

to find out, what we needed.

But you never asked for a search warrant?

Right off the top of my head [ can't remember.

Was there any reason for you not asking fer a search

warrant?

If the material was in plain view, thats one reason

If the material was in plain view, that’s one reason?

Right

But this was prior to you going into the store, is that

correct?

Uh-huh.

|\Objection to leading question sustained |

Q

A

Q

(By Mr. lee) Officer. how long have you been on the

Texarkana, Arkansas Police Department?

A little over six years now.

Have you been involved in the seizing of materials with

a search warrant?

OPrO roe LF

>

Yes, I have.

You know the procedures for obtaining a search

warrant?

Yes, I do.

Do you feel that those procedures are overburdensome?

In some instances, yes.

In some instances?

Uh-huh.

Officer, based on the facts as you knew them to be on

the day of the seizure, did you feel that there was any

reason why there could not be a search warrant

obtained for those premises?

Well, I'm a law enforcement officer. ’m not a lawyer. I

consulted two lawyers that day. Now, you tell me.

So, it’s your statement that two lawyers informed you

that you didn't need a search warrant?

Yes, that’s right.

So, that determination was made by the two lawyers

and the police officers that were involved?

By the two lawyers involved.

By the two lawyers involved?

Right.

A4

CROSS EXAMINATION

BY MR. HUDSON:

Q

A

Sgt. Moore, did you make inquiry of Assistant Prosecu-

tor McDaniels and Prosecuting Attorney Kirk Johnson

as to the proper way to make an arrest of Mr. Forgy in

this case?

Yes, sir, | did.

You had been informed before the arrest was made that

there were alleged pornographic materials in the store,

is that co-rect (sic)?

Yes.

What other steps did you take to assure that vou were

making a legal arrest of Mr. Forgy that day?

I went to the city collector's office and obtained Mr.

Forgvs name from the occupational tax form that he

filled out when you pay the occupational tax.

Did he have any address on that form other than the

adult book store address?

No, sir, he does not.

At that time, did you know of any place to find Mr.

Forgy other than at the adult book store?

No, sir.

[Objection overruled |

Q

(By Mr. Hudson) Do you normally just ask the first

person that answers the door whether the suspect is

there, and if they say no, vou go on your way looking

some place else?

No, sure don't

When Mr. Baird told you that Mr. Forgy was not there,

did you teel obliged to take his word for that?

No, | didn't

Was there any reason for going past this so-called

second door other than to look for Mr. Forgy?

None

Q

Q

Q

Q

A

When you passed the second door, what was the first

thing vou saw, or, if you could, describe the room that

vou saw there.

When you clear the second door, the rooms open up. As

you walk in the door, in front of you and kind of to the

right against the wall there is a case, and then, on the

wall that you are looking at, there is racks of maga-

zines. Then, to your left. just kind of around and to the

left there is another counter there of which Mr. Baird

was behind.

Was Mr. Heimeyer there at that time?

No, | believe he care in a short time after that.

Could you see what was on the cover of these maga-

zines when you walked into the second room, or into

the room?

When you cleared the second door and | got up closer,

ves, | could.

Armed with the definitions of the instructions that you

had from the prosecutors, did you make a determina-

tion as to whether these magazines were obscene under

the Arkansas Statutes?

The way | had it explained to me, yes, | did.

|Magazines marked for identification as Exhibit 1 over

Defense Counsel's objection and identified by the witness|

Q

A

Q

A

As I understand it, you saw these and made a deter-

mination that in your judgment they were in violation

of the obscenity statute from the cover of each of these

magazines?

Yes, sir.

Did you compile a list of these?

Yes, str, | did.

(Exhibit 2, the inventory lst of magazine titles is identi

fied. Exhibits 1 and 2 admitted over defense counsels

Ab

objection. See pp. A2Z9-A31 of Petition for Writ of Certiorari

Exhibit 3, Arrest Warrant for Terry Forgy admitted into

evidence |

Did you all leave anything in the store when you left

after the arrest?

Yes, sir.

What items did you have?

My orders were to seize one copy of any magazine that

showed explicit sex acts on the front cover. We did that,

and Mr. Baird even stood there and he assisted me to

make sure that | did not get two of each.

Do you remember whether you took the last one of any

of their stock of magazines?

I believe that there were some copies that there was

only one in the rack.

Did you take any films or any video tapes or anything

like that?

No, sir. | did not.

Did you take any of their so-called novelty items?

No, sir.

What was the criteria you used to determine whether

these magazines were obscene or not under the Arkan-

sas statute?

The way I was briefed was if the magazine showed any

explicit sex acts on the cover; that strictly nudity was

not considered obscene, that it had to show penetration

and explicit sex acts, and/or.

MR. HUDSON: Pass the witness.

REDIRECT EXAMINATION

BY MR. LEE:

{Objection to leading question sustained |

Q

A

(By Mr. Lee) Officer Moore, you stated upon cross exam-

ination by Mr. Hudson that you were briefed to take

any magazines that showed explicit sex acts from the

shelves, is that correct?

Okay, explicit sex acts, yes, but rather than clean ail

the material out, we were to take one copy of each.

That’s the continuation of that statement; I’m sorry.

So, you, at the particular point you were standing

inside the store, and [I assume the other officers were

also so briefed; they were all functioning with similar

definitions?

Right.

|The objections to leading questions sustained]

Q

A

Q

A

Q

A

Q

(By Mr. Lee) Officer Moore, how long did it take you to

determine which magazines you were going to take?

As far as determining the magazines to be taken, it

wasn't that long. The longest part was the inventory.

The longest part was the inventory?

Right.

Was there any discussion between the officers that

were in the book store as to which magazines to take?

I think, i don’t know whether it was Captain Gray or

Lt. Hartshorn, they picked up a couple of magazines

and if they were showing naked torsos, bodies, and by

what I had been told and the orders ! was getting that

wasn't considered obscene and they were put back on

the rack.

Are you aware that the same statute that you were

functioning under also covered items other than the

ones that were taken?

No, sir, I did not know it.

A&S

I believe Major Cowart walked to behind the counter,

looked behind the counter. There is another room in the

place. | don’t know if anybody went in there and looked

or not then. There is a door inside the second door;

there is another door that goes to the right.

Q Did you go into the room?

A No, I didn’t; sure didn't.

Q Was that b ecause |sic| you believed Mr. Baird when he

said Mr. Forgy wasn’t there?

A Well, Pll tell you what: The thing about it then, I wasn’t

doing the talking. Major Cowart was doing the talking.

He was the officer in charge of the raid, the arrest,

okay? Raid, arrest, whatever you would like to phrase it

as.

Q But, if your purpose was to arrest Mr. Forgy, my ques-

tion to you is once you entered the store did you go

behond |sic| Mr. Baird’s statement in looking for Mr.

Forgy on the premises?

[Objection overruled |

A I did not. I was standing there waiting to see what the

events were, okay? I was just kind of standing in the

center of the room there, and I was looking at him and

Major Cowart talking.

Q (By Mr. Lee) At some particular point, apparently the

officers inside the place, including yourself, were satis-

fied that Mr. Forgy wasnt there. Is that a correct

statement of the events?

A_ I would imagine, ves.

{Objection to leading question sustained |

Q (By Mr. Lee) Officer Moore, did you go there with the

twofold purpose of arresting Mr. Forgy and _ seizing

materials, or did you go there strictly to arrest Mr.

Forgy?

A We went there to arrest Mr. Forgy, and if there was any

A9

material the caliber of what Sgt. Adcock had purchased

and it was in plain view, yes, sir, we were going to get it,

that’s right.

MR. LEE: No further questions, Your Honor. Pass

the witness.

Al0

Q

A

Have you ever conducted a search similar to this

before?

You mean of obscene material?

Yes, sir.

No.

This is the first time vou had ever been called on to

interpret that statute?

Yes, it is.

What is the geographical location of that book store in

relationship to the city court house?

To the city court house?

Yes, sir.

You mean how many blocks?

Yes, sir

Four blocks; three and a half. | guess; up one over two

and then up about a half, maybe a block.

Do you know whether or not the city judge was ever

available during the day of the 13th?

I don't know whether he was in his office.

Did you check?

No, sir, I didn't.

Did any of your fellow officers check?

1 wouldn't Know.

[Objection to leading question sustained |

Q

A

Q

A

(By Mr. Lee) You stated that you obtained the warrant

of arrest for Mr. Forgy on cross examination?

Yes, I did.

Officer Moore, could you tell the Court, other than this

nebulous plain-view doctrine, could you tell the Court

any reason why prior to going in the store you didn't

try to obtain a search warrant?

As I have stated, | was going by the information given

me by. | would assume, they are two of the chief

advisors of the county, the prosecuting attorney and the

deputy prosecuting attorney. Thats what information |

Was operating on and the reason we came over to the

All

county building was to try to figure out how to go down

there, make the arrest, and what course of action we

should take concerning the materials that were in the

store.

{Objection to leading question sustained |

Q

A

Or H& PHPL

>

Q

Q

Q

(By Mr. Lee) Did you know prior to going that you were

going to seize some materials?

From the two magazines that Sgt. Adcock bought, if

those two were sitting in there, yes, sir, we were going

to get those two.

So, you had time ...

Right.

_.. to get a search warrant?

Right. We spent what, an hour? I don’t know: I don't

know how long we were over here.

You had Sgt. Adcock’ testimony to support a search

warrant?

Yes, uh-huh.

Were you told directly by the two individuals that you

stated advised you that you didn't need a search

warrant?

As far as the discussion we might possibly have. I can't

honestly remember. I wish I had had a body mike on so

you would have either heard the conversation ...

I understand. I understand your consternation, Officer.

I realize it has been some time. Your statement is you

can't remember whether or not you were told you didn't

need it?

MR. HUDSON: Objection to leading. Your Honor.

THE COURT: Sustained.

(‘By Mr. Lee) Officer Moore, prior to going through the

second door, did you believe Terry Forgy to be inside the

store?

Yes.

Once you got through the second door, did you look for

him?

Did we look for him? After Mr. Baird identified himself

Al2

RECROSS EXAMINATION

BY MR. HUDSON:

Q

A

Sgt. Moore, how far is the State Line Book Store, or the

adult book store that we are talking about here from

the state line between Texas and Arkansas?

From the center line of the street. fifty foot. sixty foot; I

don't know.

If the materials in that book store that you seized had

been moved that fifty or a hundred feet, whatever it is,

would you have been able to make an arrest?

You mean if it crossed the center line of the street?

Yes.

No.

When you and the other officers went past the second

door and into the display room. were you still looking

for Mr. Forgy at that point?

When we what. now?

When you went past the second door into the room

where the racks were, were you still looking for Mr.

Forgy at that point?

Yes.

By the time you had made the determination that Mr.

Forgy was not there. had you already seen some of

these magazines that have been marked Exhibit 1?

Yes, sir.

MR. HUDSON: Pass the witness.

Als

REDIRECT EXAMINATION

BY MR. LEE:

Q Officer Moore, when was it Officer Adcock came back to

the police office with a magazine?

‘Objection overruled|

A Would you repeat it, please?

iMr. Lee|

Q Yes, sir. What time was it that Officer Adcock came

back to the police department with the two magazines

that he had purchased?

A Let’see, | was working two to ten, so it was sometime, I

guess, after 1:30; I'm not sure.

() Who was the other attorney you talked to other than

the deputy prosecutor?

\ Who was the other attorney?

) Yes, sir.

\ Kirk Johnson, the prosecuting attorney.

() The prosecutor and the deputy prosecutor?

A Yes.

() At what time did you discuss these matters with him?

A Sometime after that; sometime, you know, after Set.

Adcock had came back.

() Could you give me an estimate as to the time span?

A It don't know. I can’t remember when Sgt. Adcock came

back, and prior to going down to the book store.

Q Do you rerrember about how long your conversations

with Mr Johnson and Mr. McDaniel were’

A No, sir, | don't; I don’t remember.

() Was it thirty minutes or less?

A | guess it was longer than thirty minutes: seems like it

Was.

() How long after your discussions with them was it

before you got back to State Line Books?

Al4

That I don’t know either; I can’t remember.

Did it ever cross your mind during these particular

transactions that those books may have been moved

across the state line?

No, sir.

Was that ever a concern of yours?

No, I didn't really think about it, no.

MR. LEE: No further questions of this witness.

Ald

RECROSS EXAMINATION

BY MR. HUDSON

Q Do you know whether that was a consideration of Major

Cowart or not?

A I have no way of knowing.

MR. HUDSON: I have nothing further.

MR. LEE: I have nothing further.

THE COURT: Thank you. You may step down.

Al6