Opposition Brief — Tavone v. Rhode Island

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, MAR 18 1995

ALEXANDER L. STEVAS

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No. 84-1179

CLERK

In The

Supreme Court of the United States

October Term, 1984

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JOHN J. TAVONE,

Petitioner,

vs.

STATE OF RHODE ISLAND,

Respondent.

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Vv

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR CERTIORARI

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—

STATE OF RHODE ISLAND

by its attorney

ARLENE VIOLET

ATTORNEY GENERAL

Tomas M. Dickinson

Special Assistant Attorney General

Appellate Division

72 Pine Street

Providence, Rhode Is!and 02903

(401) 274-4400

March, 1985

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

BEST AVAILABLE COPY }

TABLE OF CONTENTS

Pages

TABLE OF CASES i

SUMMARY OF ARGUMENT 1

STATEMENT OF THE CASE 1

ARGUMENT 1

CONCLUSION 12

TABLE OF CASES

CASES:

Coolidge v. New Hampshire, 403 U.S. 443, 449 (1971) 6

Heller v. New York, 413 U.S. 483 (1973) 4,6

Illinois v. Gates, 103 S.Ct. 2317 (1983) 8

Lee Art Theatre v. Virginia, 392 U.S. 636 (1968) .....1, 2,6

Lo-Ji Sales v. New York, 442 U.S. 319 (1979) ............... 5, 6

Mapp v. Ohio, 367 U.S. 643 (1961) ee

Massachusetts v. Sheppard, 104 8.Ct. 3424 (1984) ...9, 10

Miller v. California, 413 U.S. 15 (1973) 2,3

Roaden v. Kentucky, 413 U.S. 496 (1973) on 4,6

State v. Tavone, 482 A.2d 693 (R.I. 1984) 7

United States v. Leon, 104 8.Ct. 3405 (1984) ow. 9,10

United States v. Middleton, 599 F.2d 1349 (5th

Cir. 1979) ... i 7

Weeks v. United States, 232 U.S. 383 (1914) —W.WW... 9

Now comes the Respondent, the State of Rhode Island,

and prays that the Petition for a Writ of Certiorari to

the Supreme Court of Rhode Island be denied.

i)

SUMMARY OF ARGUMENT

I. The Rhode Island Supreme Court correctly concluded

that the warrant was proper.

II. The Exclusionary Rule must not be applied in this

case.

III. Petitioner’s conviction does not violate the due pro-

cess clause.

om)

STATEMENT OF THE CASE

For the purposes of the within Petition, Respondent

agrees to the statement of facts set out in the Petitioner’s

petition.

co)

ARGUMENT

I. The Rhode Island Supreme Court Correctly Con-

cluded That The Warrant Was Proper.

In Lee Art Theatre v. Virginia, 392 U.S. 636 (1968), a

police officer obtained a warrant based upon the bare con-

1

clusory allegation that certain films were obscene. This

Court, in a brief per curiam order, reversed the defend-

ant’s conviction with the following observation:

“TW Je need not decide in this case whether the [magis-

trate] should have viewed the motion picture before

issuing the warrant. The procedure under which the

warrant issued solely upon the conclusory assertions

of the police officer without any inquiry by the [magis-

trate] into the factual basis for the officer’s conclu-

sions was not a procedure designed to focus searching-

ly on the question of obscenity,” .. . aud therefore fell

short of constitutional requirements demanding neces-

sary sensitivity to freedom of expression.” Jd. at 637

(citations omitted).

In the instant case Petitioner asks this Court to re-

solve the question left unanswered in Lee Art. The Re-

spondent recognizes that this is an issue that has never

been specifically resolved by this Court. Nevertheless, Re-

spondent submits that the courts below properly applied

then law which is readily discernible from this Court’s

opinions in this area. Thus, it is Respondent’s view that

the within case is simply unworthy of this Court’s discre-

tionary certiorari jurisdiction.

In Miller v. California, 413 U.S. 15 (1973), this Court

reiterated the view that obscene material is not protected

by the First Amendment. Jd. at 23. The Miller Court

promulgated specific guidelines to be used in determining

whether a particular work is legally obscene:

‘<The basic guidelines for the trier of the fact must be:

(a) whether ‘the average person, applying contemp-

orary 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 pa-

tently offensive way, sexual conduct specifically de-

fined by the applicable state law; and (c) whether the

work, taken as a whole, lacks serious literary, artistic,

political, or scientific value.” Jd. at 24.

The Rhode Island General Assembly was fully cogni-

zant of the Miller test when it enacted the State obscenity

statute. Section 11-31-1 of the Rhode Island General Laws

defines cbscenity as follows:

“In determining whether or not a show, motion pic-

ture, performance, photograph, book, magazine, or

other material is obscene the trier of fact must find

(a) that the average person, applying con-

temporary community standards would find that the

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

terest and

(b) that the work depicts or describes, in a pa-

tently offensive way, sexual conduct specifically de-

fined by this chapter and

(c) that the work, taken as a whole, lacks seri-

ous literary, artistic, political or scientific value. R.I.

Gen. L. (1981 Reenactment) Sec. 11-31-1.

It is noteworthy that Petitioner in this case does not

claim that the Miller standard was improperly explained to

the jury. Nor does he allege that the evidence was in-

sufficient to convict in accordance with the Rhode Island

statute. By declining to pursue such arguments, Petitioner

essentially concedes that the film seized was obscene. The

within Petition accordingly focuses not upon the film it-

self but upon the warrant issued for its seizure. In this

regard Petitioner claims that the Superior Court Justice

who issued the warrant lacked sufficient information upon

which to find probable cause for seizure of the film. An

examination of this Court’s decision in this area reveals

that Petitioner’s claim lacks merit.

In Roaden v. Kentucky, 413 U.S. 496 (1973), a county

sheriff visited a drive-in theater to view a certain film

entitled “Cindy and Donna”. The sheriff concluded that

the film was obscene. At the conclusion of the showing he

arrested the manager of the theater and seized a copy of

the film. The defendant’s motion to suppress was denied

and defendant was convicted. This Court, on a writ of

certiorari, concluded that the warrantless seizure of the

film violated the Fourth Amendment. The Court noted

that the Fourth Amendment protects against unreason-

able seizures. Jd. at 501. In measuring reasonableness, a

reviewing court necessarily considers the nature of the

materials seized. Books or films are in a special category

because their seizure implicates values protected by the

First Amendment as well as the Fourth Amendment:

“TM Jaterial seized fell arguably within First Amend-

ment protection, and the taking brought to an abrupt

halt an orderly and presumptively legitimate distri-

bution or exhibition. Seizing a film then being ex-

hibited to the general public presents essentially the

same restraint on expression as the seizure of all the

books in a bookstore. Such precipitate action by a

police officer, without the authority of a constitu-

tionally sufficient warrant, is plainly a form of prior

restraint and is, in those circumstances, unreasonable

under Fourth Amendment standards.” Jd. at 504.

On the same day that Roaden was decided, this Court

issued its opinion in Heller v. New York, 413 U.S. 483

(1973). The Court in Heller upheld the seizure of an ob-

scene film pursuant to a warrant issued by a magistrate

who had visited the theater for the purpose of viewing

the film. As with all warrants, the warrant in Roaden is-

sued without any adversarial! proceedings. This Court saw

no reason to require a pre-warrant adversary hearing.

The Court concluded that appropriate post-seizure proce-

dures adequately protect the defendant’s rights:

“If such a seizure is pursuant to a warrant, issued af-

ter a determination of probable cause by a neutral

magistrate, and, following the seizure, a prompt judi-

cial determination of the obscenity issue in an adver-

sarial proceeding is available at the request of any

interested party, the seizure is constitutionally permis-

sible.” Id. at 492.

This Court confronted a slightly different problem in

Lo-Ji Sales v. New York, 442 U.S. 319 (1979). In that case

the police delivered to a magistrate two films which had

been purchased at an adult book shop. The magistrate

viewed the films, concluded that they were obscene, and

issued a warrant for additional copies of the same films.

The magistrate’s role apparently did not end with his

signing of the warrant. Police officers invited the magis-

trate to join them when they executed a warrant in order

to make an independent determination regarding other al-

legedly obscene items on display at the store. What en-

sued was an all-day visit to the bookstore by the magis-

trate and the police. The magistrate apparently viewed

films and books by the dozens, spending barely seconds in

concluding that each item was obscene. At the end of the

day the police inventoried the items seized. Despite the

fact that the seizure was a fait accompli, the police

amended the search warrant to include the hundreds of

books and films that they had seized.

On these facts, this Court concluded that this highly

intrusive search and seizure contravened the Fourth

Amendment’s proscription against unreasonable searches

and seizures. First, the Court reasoned that the warrant

as originally drawn was far too general in its scope. The

6

police in executing the warrant treated it as a general

warrant in utter disregard for the Fourth Amendment’s

particularity requirement. Moreover, this Court found the

role of the magistrate to be an absolute abdication of “that

neutrality and detachment demanded of a judicial officer

when presented with a warrant application for a search

and seizure.” Jd. at 326 (citing Collidge v. New Hampshire,

403 U.S. 443, 449 (1971)). In commenting upon the magis-

trate’s role in the entire escapade, this Court reasoned in

Lo-Ji,

“[T jhe objective facts of record manifest an erosion

of whatever neutral and detached posture existed at

the outset. He allowed himself to become a member,

if not the leader, of the search party which was essen-

tially a police operation. Once in the store, he con-

ducted a generalized search under authority of an in-

valid warrant; he was not acting as a judicial officer

but as an adjunct law enforcement officer.” 442 U.S.

at 327.

Several principles are readily discernible from the

foregoing cases. First, a bare conclusory allegation that

certain materials are obscene will never provide probable

cause for issuance of a warrant. Lee Art Theatre v. Vir-

ginia supra; see Roaden v. Kentucky, supra. Where the

issuing magistrate actually views the film, he may grant

a warrant based upon his observations. Heller v. New

York, supra. On the other hand, any magistrate who un-

dertakes to view the materials in person must strictly

limit his involvement at the scene. Lo-Ji Sales v. New

York, supra.

Viewed against this backdrop, Respondent submits

that there was no defect in the warrant issued in the case

at bar. The films involved were described in explicit de-

tail by Rhode Island State Police Detective Anthony M.

Pesare in his application for a warrant. With regard to

the film “Baby Blue” Detective Pesare stated:

“The plot revolved around t:vo couples and a young

girl and her boyfriend. A scene viewed by your affiant

took place on the couch of a house. A male and a fe-

male were engaged in various sexual activity. The

female performed fellatio on the erect penis of the

male. The male then performed cunnilingus on the

female and the two then engaged in sexual intercourse

which culminated in the male withdrawing his penis

_ from the vagina of the female and ejaculating on her

‘| stomach.”

“In another scene from ‘Baby Blue’ your affiant ob-

served two females engaged in homosexual activities.

The two females performed cunnilingus on each other

on a floor near a fireplace. During the scene the two

also engaged in mutual masturbation. This activity

took place under the watchful eye of a male character

in the film.”

“Your affiant viewed many other scenes in this pic-

ture involving males and females engaged in sexual

acts such as intercourse, fellatio, cunnilingus and mas-

turbation.” (Petitioner’s App. 15-16).

The Rhode Island Supreme Court concluded that this

affidavit alleged sufficient probable cause to justify is-

suance of a warrant. The court relied upon United States

v. Middleton, 599 F.2d 1349 (5th Cir. 1979), in reasoning

that such an affidavit need not describe each and every

sexual act in a film in order to establish probable cause:

“(I]t seems clear that these scenes ‘contained succes-

sive acts which common sense dictates would require

several minutes to perform and thus would consume

a substantial portion of the entire film...’ The af-

fiant also stated that he reviewed many other scenes

showing various explicit sexual acts. Given the rela-

tively short length of the films, we are satisfied that

the affidavit provided the magistrate with sufficient

understanding of each of the films.” State v. Tavone,

482 A.2d 693, 698 (R.I. 1984) (citation omitted).

The Respondent submits that the Rhode Island Su-

preme Court was correct when it concluded that the affi-

davit supplied probable cause for issuance of the warrant.

This Court has recognized the need to distinguish between

the quantum of evidence necessary to obtain a warrant and

the degree of proof essential to sustain a criminal convic-

tion. A magistrate reviewing a warrant application must

apply a standard significantly less stringent than proof be-

yond a reasonable doubt. As Justice Rehnquist wrote in

this Court’s opinion in Jllinois v. Gates, 103 S.Ct. 2317

(1983).

“Finely-tuned standards such as proof beyond a rea-

sonable doubt or by a preponderance of the evidence,

useful in formal trials, have no place in the magis-

trate’s decision. While an effort to fix some general

numerically precise degree of certainty corresponding

to ‘probable cause’ may not be helpful, it is clear that

‘only the probability, and not a prima facie showing, of

criminal activity is the standard of probable cause.’ ”

Id. at 2330 (citations omitted).

The affidavit in this case left little to the imaginaton.

It reported no fewer than five sexual acts in explicit de-

tail. The affiant reported that these acts and others were

repeated many times in this short film. Petitioner fails

to draw this Court’s attention to anything of significance

or value that was omitted from the affidavit. Given the

proper level of detail in the affidavit, Respondent submits

that the Rhode Island Supreme Court properly concluded

9

that it was sufficient. Unless this Court is prepared to

adopt a per se rule requiring an issuing magistrate to pre-

screen all allegedly obscene materials, the Petition for cer-

tiorari must be denied.

II. The Exclusionary Rule Must Not Be Applied In

This Case.

This Court announced the Fourth Amendment exclu-

sionary rule in Weeks v. United States, 232 U.S. 383

(1914), and Mapp v. Ohio, 367 U.S. 643 (1961). The Court

has recently recognized that the philosophical underpin-

nings of the exclusionary rule sometimes will not support

its application to exclude reliable, probative evidence ob-

tained in technical violation of the Fourth Amendment.

Massachusetts v. Sheppard, 104 S.Ct. 3424 (1984); United

States v. Leon, 104 S.Ct. 3405 (1984). The principles en-

dorsed in Sheppard and Leon weigh heavily against appli-

cation of the exclusionary rule in this case.

In Leon, this Court recognized that adherence to the

truth-finding role of judges and jurors sometimes requires

that the propriety of the exclusionary sanction be mea-

sured in light of the magnitude of the alleged police mis-

conduct :

“Particularly when law enforcement officers have

acted in objective good faith or their transgressions

have been minor, the magnitude of the benefit con-

ferred on such guilty defendants offends basic con-

cepts of the criminal justice system.” United States

v. Leon, 104 S.Ct. at 3405 (1984).

In both Sheppard and Leon this Court held that police

officers had reasonably relied upon facially valid war-

rants. In view of this reasonable reliance, the Court held

10

that the exclusionary rule could not apply. Respondent

submits that a similar approach is proper in this case. A

Justice of the Superior Court considered the warrant ap-

plication to be proper. Later, another Justice agreed and

denied the motion to suppress. Moreover, the Rhode Is-

land Supreme Court held that the warrant was adequate.

In light of this substantial authority in support of the war-

rant, the police officer’s reliance upon the warrant was

clearly proper.

Given the clear evidence that the police acted in good

faith, Sheppard and Leon preclude application of the ex-

clusionary rule. Accordingly, the writ of certiorari must be

denied.

III. Petitioner’s Conviction Does Not Violate The Due

Process Clause.

Petitioner argues that his conviction should have been

barred under the Due Process clause. His theory revolves

around certain licenses issued by the Town of West War-

wick for the general exhibition of films at his theater.

These licenses, Petitioner theorizes, constituted an af-

firmative representation by town officials that he would

not be prosecuted for showing obscene films. Based on this

theory, Petitioner alleges that the trial judge erroneously

refused to dismiss the indictment. Failing this argument,

Petitioner alleges that the issuance of the licenses was im-

properly kept from the jury. This latter contention is noth-

ing less than an attempt to mislead this Honorable Court.

An examination of the trial transcript reveals that li-

censes were admitted as exhibits at pages 105 and 108.

Thus, Petitioner’s assertion that the licenses were never

before the jury is patently false. Moreover, Petitioner’s

11

theory of “reliance” as a basis for dismissal of the indict-

ment is simply wrong.

An examination of the license in issue (Petitioner’s

App. C) reveals the following language:

“This license is granted subject to all provisions con-

tained in G.L. 1956 as amended and all Town Ordin-

ances relative thereto.” (Pet. App. C).

Thus, from the very face of the license, Petitioner was

on notice that he was absolved of none of the provisions of

the General Laws.

Petitioner places heavy reliance upon the case of

State v. Berberian, 427 A.2d 1298 (R.I. 1981). Respondent

agrees that Berberian is most instructive. In Berberian

the defendant had applied for and obtained a license for

the showing of a specific film. After receiving the license,

defendant was prosecuted criminally for showing the very

film that city officials had authorized him to show. On

these facts, the Rhode Island Supreme Court concluded

that the defendant had a reasonable right to rely on the

permit issued in that case.

Berberian is clearly distinguishable from the instant

ease. In this case Petitioner obtained a broad license for

the exhibition of films. The license did not refer to any

specific film, nor did Petitioner receive any assurance that

he could show obscene films without prosecution. Indeed,

the license clearly alerted Petitioner that he remained sub-

ject to the General Laws of Rhode Island. On this state

of affairs Respondent suggests that the conclusion of the

Rhode Island Supreme Court was clearly correct:

“In no way can the town council be said to have af-

firmatively misled defendant into believing that

12

through the issuance of a general license the town had

given up its right to challenge as obscene films that

might be shown at the Palace Theatre.” 482 R.I. at

696.

Petitioner’s theory is simply erroneous. States grant

licenses for myriad activities such as driving, construction,

and the practice of law. The recipents of such licenses re-

main fully subject to the laws of the jurisdiction. For ex-

ample, a licensed driver who violates the traffic laws is

subject to prosecution. He cannot claim that the license

confers immunity from prosecution. Yet this is the logical

extension of the theory that Petitioner proposes. Re-

spondent submits that the theory is wrong and that the

Petition for certiorari must be denied.

°

CONCLUSION

For the foregoing reasons the Petition for a writ of

certiorari must be denied.

STATE OF RHODE ISLAND

By its attorney

ARLENE VIOLET

ATTORNEY GENERAL

THOMAS M. DICKINSON

SPECIAL ASSISTANT

ATTORNEY GENERAL

72 Pine Street

Providence, Rhode Island 02903