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State v. Shapiro

Decided: January 26, 1973.

THE STATE OF NEW JERSEY, PLAINTIFF,
v.
EDWARD SHAPIRO AND MILTON NERENBERG, DEFENDANTS



McGann, Jr., J.s.c.

Mcgann

[122 NJSuper Page 415] Prior to August 25, 1972 defendants had been in the business of selling books and magazines at the "Action Auction" on Highway 36 in Middletown township. On August 25, 1972 and again on September 1, 1972 police officers of the township, without benefit of a warrant, entered defendants' premises and seized various publications.

These publications are listed in schedules A through D*fn* and encompass 270 different items. Copies of some of the items were also seized.

Pursuant to R. 3:5-7 timely motions were made to suppress the use of such items as evidence in any pending criminal prosecution, as well as for return of the property seized. Pending the disposition of the motion all of the items seized were turned over to the Monmouth County Prosecutor's Office. Between the date of the motion and the hearing I reviewed each of them.

I

If a warrant is couched in general terms directing a police officer to search for and seize property "used as a means of committing a misdemeanor in violation of the laws of the State of New Jersey, to wit: 2A:115-2, uttering, exposing or selling obscene literature or pictures," it violates Fourth Amendment rights as applied to First Amendment freedoms. State v. Muldowney , 60 N.J. 594 (1972). The prosecutor conceded the legal conclusion of the a fortiori argument in this case where the police had no warrant whatsoever. The order of suppression was entered on October 3, 1972.

II

The Prosecutor resists, however, the return of the publications. He argues that they are obscene; that their being possessed by defendants with intent to sell violates N.J.S.A. 2A:115-2; that the items are therefore contraband and not subject to return. N.J.S.A. 2A:115-2 provides in pertinent part as follows:

Any person who, without just cause, utters or exposes to the view * * * of another, or possesses with intent to utter or expose to the view * * * of another, any obscene or indecent book, publication, pamphlet, picture * * * or other representation however made or any person who shall sell * * * or distribute or possess with intent to sell * * * distribute, or offer for sale any obscene or indecent book, publication, pamphlet, picture or other representation, however made * * * is guilty of a misdemeanor.

There is no doubt but that defendants were in the business of selling the seized publications. If the materials are obscene or indecent, defendants were prima facie violating the criminal law.*fn1 That the actions of the police effectively frustrated any prosecution for the crime does not detract from the criminal activity engaged in by defendants. If the materials are obscene or indecent, they are contraband.

In this action the State is not seeking a forfeiture; it is resisting defendants' motion that the materials be returned. Strictly speaking, forfeiture principles do not apply. State v. Sherry , 46 N.J. 172 (1965). If the materials are obscene, the activity engaged in by defendants was a crime. As a matter of public policy the materials should not be returned to be used in future illegal activity, any more easily than would an unauthorized weapon whose evidential use had been suppressed. If the materials are obscene, defendants can claim no property right in them by virtue of purchase from a distributor, any more successfully than could a pawnbroker who purchased a stolen item for adequate value.

III

Insofar as a determination of obscenity vel non is concerned, defendants raise a number of threshold arguments.

A

They urge, initially, that before this court can make any determination it must hold an "adversary hearing."

In obscenity cases, in order that First Amendment rights be safeguarded, an adversary (as contrasted with an ex parte) hearing is required before a wholesale seizure. A Quantity of Books v. Kansas , 378 U.S. 205, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964). An adversary hearing in this sense consists in "the opportunity for adversary presentation to ensure that expression will not be suppressed without contest and justification." Cambist Films, Inc. v. Illinois , 292 F. Supp. 185 (U.S.D.C. 1968).

The term "adversary hearing" is meaningless as applied to this case where the seizure has already been declared illegal. What is before the court is the question of return of the materials. That issue has been fully argued. Defense counsel has submitted lengthy and detailed memoranda and supplements thereto. Oral argument was had in which the positions of the parties were fully explored. If an "adversary hearing" is required, one was had.

It must be remembered that this case is not that of a wholesale seizure which would effectively deprive the citizens of a large area of the opportunity to buy and read the publications -- as was A Quantity of Books, supra. If the people of Monmouth County feel a need to read the titles listed in the schedules, I have no doubt but that they can find other sources readily available. The instant action arises not because a prosecutor is on a county-wide sweep to prevent the free expression of ideas but rather because a local police department, in a procedurally incorrect way, is seeking to enforce the criminal law.

B

Defendants argue additionally that to find justification to deny the motion for return of the books, i.e. , in order to determine them obscene, this court must apply not

only the correct constitutional tests but also must have the benefit of expert testimony. No authority is cited making that a mandatory requirement. There may be cases in which expert opinion could well be helpful to the factfinder. Cf. Keuper v. Wilson , 111 N.J. Super. 489, 495 (Ch. Div. 1970). This is not such a case. I have perused the publications -- all 270 of them. I can read English; I can see the photographs. I am able to comprehend each work as a whole. After determining as a matter of law what constitutional standards should apply, I no more need "expert" opinion to make the ultimate finding than I would in applying the standard of the reasonably prudent man in a negligence action. Evidence Rule 56 (2); Angel v. Rand Express Lines, Inc. , 66 N.J. Super. 77 (App. Div. 1961).

C

At oral argument counsel for defendants urged that there were available publications similar to those before the court which had been adjudicated nonobscene by other courts and which, as comparable materials, would bind this court to a finding of nonobscenity of the materials in issue. Opportunity was allowed for submission of those publications. Two were received. They are magazine type items of the same general nature as Schedules C and D, entitled "My-O-My Volume II" with a sale price of $6 and "Togetherness" with a sale price of $5. "My-O-My" contains 30 pages of "Excitachrome" color photographs of nude males making love to one another. "Togetherness" contains 29 pages of "T.H.P. Vitra Color" color photographs of nude males and females with their genitalia juxtaposed and in each other's (and the viewer's) face. It is alleged that "Togetherness" was one of the items involved in the reversal of a state conviction of obscenity in Burgin v. South Carolina , 404 U.S. 806, 92 S. Ct. 46, 30 L. Ed. 2 d 39 (1971). "My-O-My" allegedly was among the magazines and films involved in the Supreme

Court reversal of a California conviction in Weiner v. California , 404 U.S. 988, 92 S. Ct. 534, 30 L. Ed. 2d 539 (1971).

The comparability argument has no merit. This court must decide the obscenity of the materials before it on their merits, not on the merits of some other materials passed on by some other courts. Womack v. United States , 111 U.S. App. D.C. 8, 294 F.2d 204 (D.C. Cir. 1961). I fail to comprehend the argument that five of nine Supreme Court justices find one item to be nonobscene, such action establishes a "community standard" to be applied to other allegedly similar publications. Whether a specific item is obscene is an individual determination. An adjudication on one work cannot be binding, as a matter of law, on another.

IV

N.J.S.A. 2A:115-2 is constitutional.

"If men were angels no government would be necessary." James Madison, Federalist No. 51.

The police power does not have its genesis in a written constitution. It is an indispensable attribute of our society, possessed by the state sovereignties before the adoption of the Federal Constitution. [ Schmidt v. Board of Adjustment, Newark , 9 N.J. 405, 414 (1952)]

Government under our form of democracy has the responsibility of protecting the morals of its people. The obligation is basic and undisputed. [ Adams Newark Theater Co. v. Newark , 22 N.J. 472, 478 (1956)]

The State has the power, in the interests of the common good, to enact all manner of laws reasonably designed for the protection of the public health, welfare, safety and morals. The exercise of the power may cause individual hardship or even limit the freedom of individual action; but so long as there is some degree of reasonable necessity to protect the legitimate interests of the public, and the regulation resulting from the use of the power is not arbitrary or oppressive, the greater good for the greater number must prevail and

individual inconveniences must be suffered as the price to be paid for living in a well ordered society * * * Mr. Justice Holmes, in Noble State Bank v. Haskell , 219 U.S. 104, 31 S. Ct. 186, 188, 55 L. Ed. 112, 32 L.R.A. (N.S.) 1062 (1911), mentions that this power

"* * * may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare."

[ Vanderbilt, C.J. in Gundaker Central Motors v. Gassert , 23 N.J. 71, 78 (1956)]

Pursuant to that police power the Legislature of New Jersey, beginning in 1868, enacted legislation prohibiting the sale or distribution of obscene or indecent literature (L. 1868, c. 536, p. 1160). The basic enactment -- carried through a series of supplements and revisions -- currently appears as N.J.S.A. 2A:115-2, supra.

Unchecked police power leads inevitably to a police state. Wise limitations were placed on the federal power by the Bill of Rights and in our State Constitution (1947) by Article I, "Rights and Privileges." "But the police power may not be exercised so as to be repugnant to the fundamental constitutional rights guaranteed to all citizens." Gundaker Central Motors v. Gassert, supra , at 79.

Under the police power government does have the right to regulate public morality. Our statute, N.J.S.A. 2A:115-2, supra , prohibting exposing to the view of another or distribution of obscene and indecent materials, is constitutional. Roth v. United States ,*fn2354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957); State v. Hudson County News Co., supra. The First Amendment raises no bar to such a statute since it does ...


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