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State v. Bongiorno

Decided: November 18, 1968.

STATE OF NEW JERSEY,
v.
ROSARIO BONGIORNO AND SAMUEL ZORN, DEFENDANTS



Kramer, Paul R., J.c.c. (temporarily assigned).

Kramer

This is a motion to suppress evidence, namely, allegedly obscene magazines or booklets seized from two defendants as they traveled through the State of New Jersey from New York to Maryland.

The State contends that on April 10, 1968, at about 1:48 P.M., Trooper Talpas of the New Jersey State Police was patrolling the New Jersey Turnpike in Mount Laurel Township, Burlington County, when he saw a 1968 blue Plymouth sedan with New York license plates. This car was proceeding in a southerly direction and riding low in the rear." Defendant Zorn was the operator of the vehicle and defendant Bongiorno a passenger. It ultimately appeared that Zorn had borrowed the vehicle from one Varrone, who had rented it from the Kenny Car Rental System. The trooper stopped the vehicle for a routine check and was shown the proper license and ownership papers.

At this point the testimony becomes divergent, with defendants contending that the trooper peremptorily ordered the trunk opened, after which he seized the keys, opened the trunk and began ripping open unmarked cardboard cartons. I have concluded, on the basis of my observation of defendants and the manner in which they testified, that they were not telling the truth and that Trooper Talpas merely questioned them as to why the car was riding so low in the rear, whereupon defendant Zorn attempted to bluff his way out of the situation and be on his way as soon as possible. The trooper's testimony was that Zorn, in his efforts to persuade him that he was a legitimate businessman and should be released, volunteered that he had "art magazines," said "Look, I'll show you," and then opened the trunk. I find that he himself opened one of the cardboard cartons and proffered the three exhibits to the officer.

Zorn selected three of the publications at random, which publications are as follows:

(1) Girls in Love. This is a paperback book which details the lesbian relationship of Suzette and Liz, her paramour. In addition to textual material detailing love-making, both homosexual and heterosexual, there are numerous colored photographs showing numbers of women wrestling, whipping one another or lying about embracing. In most of these photographs the breasts are exposed, the positions are suggestive, and the women wear only panties, stockings and shoes.

(2) Grey Huff, No. 4 DSI. This is a publication, evidently directed toward the homosexual market, consisting mostly of large photographs (colored and uncolored) of nude males with no attempt to either emphasize or hide the genitalia. Some sophistication is attempted, with brief one-or two-page articles on obscenity and punishment for homosexual crimes, and there are purportedly humorous short stories dealing with homosexuality.

(3) Jet Set, vol. 3. This is a magazine showing only nude females, all of whom are in suggestive positions with legs spread so as to accentuate the female sex organ.

The trooper testified that upon scanning the magazines by the side of the road he "thought they were obscene," advised defendants that he had never seen anything like them and would not want any member of his family to see them, whereupon he took defendants to the nearest barracks. They were held there a short period of time until the chief of the Burlington County detectives arrived. Chief McConnell declared the publications obscene and defendants were advised they were under arrest.

Having determined that there was no initial search in view of Zorn's desire to convince the trooper that he was a legitimate businessman dealing with art magazines, the court is now met with the difficult problem as to whether a valid arrest was made (either by the side of the New Jersey Turnpike when defendants were directed to accompany the

trooper, or later at the barracks when Chief McConnell declared the publications obscene and used formal arrest language), and whether ...


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