# Opposition Brief — Arkansas v. Baird

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3188%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1004

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3188%3A2. Public record. Not legal advice.