Randall Book Corp. v. State

BLOOM, Judge. This “dirty books” case, as Horace Rumpole (Rumpole of the Bailey) might describe it, 1 involves an interplay between the First and Fourth Amendments to the United States Constitution. It also tends to demonstrate, in a negative manner, the wisdom of an observation made by the poet Hesiod some twenty-six centuries ago, that “right timing is in all things the most important factor.” 2 The case originated in the summer of 1981. Ordinarily, with “right timing,” it would have reached us in its present posture long before the summer of 1984 and might well have resulted in a reversal of the 116 convictions from which this appeal was taken.

As it is, because of the decisions handed down by the Supreme Court on July 5, 1984, in United States v. Leon, 468 U.S. ___ , 104 S.Ct. 3405 , 82 L.Ed.2d 677 , and Massachusetts v. Sheppard, 468 U.S. ____ , 104 S.Ct. 3424 , 82 L.Ed.2d 737 , we reach the opposite result. We shall explain. ⁵⁹³ Background Appellant, Randall Book Corporation, operated the Rye Bookstore in Reisterstown, Maryland. The store was divided into four sections, one section in the back being devoted to the display and sale of “adult” books, magazines and films. 3 For several years the Baltimore County police department kept the store under observation, hoping to find some violation of the law. Finally, on four occasions in March, May and June of 1981, Detectives Miller and Dunlap purchased magazines which they had selected from a display rack in the back room of Rye Book Store.

Each sale resulted in the arrest and trial of the salesclerk for violation of Md.Ann. Code art. 27, § 416D, which provides: § 416D. Displaying certain visual representations for advertising purposes. (a) Any person, firm or corporation is guilty of a misdemeanor if it knowingly displays for advertising purposes any picture, photograph, drawing, sculpture or other visual representation or image of a person or portion of the human body that depicts sadomasochistic abuse, sexual conduct or sexual excitement, or any verbal description or narrative account of these activities or items. (b) Any person, firm or corporation is guilty of a misdemeanor, if it knowingly permits any such display on premises owned, rented or managed by it. “Sadomasochistic abuse,” “sexual conduct,” and “sexual excitement” as used in § 416D are defined in § 416A as follows: (c) Sadomasochistic abuse means flagellation or torture by or upon a human who is nude, or clad in undergarments, or in a revealing or bizarre costume, or the condition of one who is nude or so clothed and is being fettered, bound, or otherwise physically restrained. ⁵⁹⁴ (d) Sexual conduct means human masturbation, sexual intercourse, or any touching of or contact with the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex, or between humans and animals.

(e) Sexual excitement means the condition of human male or female genitals, or the breasts of the female, when in a state of sexual stimulation, or the sensual experiences of humans engaging in or witnessing sexual conduct or nudity. The first two prosecutions resulted in convictions and fines of $250 each, the third salesclerk was given probation before judgment and the fourth was awaiting trial as of June 25, 1981, when Detectives Miller and Dunlap decided to adopt a new strategy in their campaign to prevent the citizens of Reisterstown from being offended by the sight of salacious material “displayed for advertising” in the “adults only” section in the rear of the Rye Book Store. The prosecution of appellant’s salesclerks on a retail basis, i.e., for one book or magazine at a time, did not seem to have the desired effect of closing the book store, although it did cause a turnover in personnel. Accordingly, on June 25, 1981, the officers made an application to a judge of the District Court of Maryland for a warrant to seize and remove from appellant’s store books, magazines, photographs, films, and posters “that are displayed for advertising purposes which depict sadomasochistic abuse, sexual conduct, and sexual excitement.” The application for the warrant and supporting affidavit were extremely thorough and detailed.

They described the premises and, in general terms, the types of scenes and activities depicted on the covers of books and magazines on display in the back room of the book store. Attached to the affidavit, by way of samples, were photocopies of the front covers of the four magazines previously purchased by the officers and used in the prosecutions of appellant’s salesclerks. Two of them, “Taskmaster,” Volume 1, Number 1 and “Bondage Movie ⁵⁹⁵ Review,” had color photographs on the front and back covers of nude or scantily clad women bound and gagged. A third, “Men of Action,” No. 1, depicted on its cover a nude man bound and gagged.

The fourth, “Hot Dog,” had a color photograph on the front cover of a woman performing fellatio on a male and a photograph on the back cover of the man performing an act of cunnilingus on the woman. The application and affidavit set forth the officers’ prior activities and observations, the prosecutions of the salesclerks and results thereof and continued with the averment that on June 24, 1981, the affiants revisited the store and found that it continued to display for advertising purposes, in violation of art. 27, § 416D, the same types of materials previously described and exampled by the annexed photocopies. On the basis of the application, affidavit and exhibits, the District Court judge issued the requested warrant to enter and search appellant’s premises and to “[s]eize and remove all books, magazines, photographs, films and posters that are displayed for advertising purposes which depict sadomasochistic abuse, sexual conduct, and sexual excitement.” Armed with that warrant, Detective Dunlap and several other officers presented themselves at Rye Book Store about 11:00 a.m. on June 26, 1981, and, over the next several hours, they seized and carried away some 733 items that had been on display racks or otherwise exhibited to prospective purchasers. Materials in boxes or in cabinets were not taken by the police.

From the 733 items seized, the police selected 126 magazines as bases for prosecuting appellant. 4 Three separate charging documents were filed in the District Court, charging appellant with a total of 252 offenses, viz., one count for displaying prohibited material for advertising purposes (art, 27, § 416D(a)) and one count for knowingly permitting such material to be displayed for advertising purposes (art. 27, § 416D(b)) for each magazine. ⁵⁹⁶ Appellant requested a jury trial on each charging document and the cases were removed to the Circuit Court for Baltimore County, where they were consolidated. Appellant moved (1) to dismiss the charging documents on the ground that the statute upon which the charges were based was unconstitutional and (2) to suppress the evidence seized from its store on the grounds that (a) there was insufficient probable cause for the issuance of the warrant and (b) the seizure was unreasonable despite the warrant. The court denied the suppression motion but granted the motion to dismiss, holding that art. 27, § 416D was unconstitutionally vague and overbroad. The State appealed from the dismissal and appellant cross-appealed from the denial of its suppression motion.

Before this court rendered its decision, the Court of Appeals ruled on the constitutionality of § 416D. It held, in Smiley v. State, 294 Md. 461 , 450 A.2d 909 (1982), that in enacting § 416D the legislature was broadly prohibiting advertising depicting obscenity and, as such, although the statute does not mention the word “obscenity," it embodies the latest Supreme Court definition of obscenity. So construed, the section was held to be constitutional and not overbroad. Bound by that decision, we reversed the trial court’s dismissal of the charging documents.

Since there could be no appeal from the denial of a motion to suppress, absent a judgment of conviction, we dismissed appellant’s cross-appeal. State v. Randall Book Corporation, 53 Md.App. 30 , 452 A.2d 187 (1982). The Court of Appeals denied appellant’s petition for certiorari, 295 Md. 441 (1983), as did the Supreme Court of the United States, 464 U.S. 919 , 104 S.Ct. 286 , 78 L.Ed.2d 263 (1983), with Justices Brennan and Marshall dissenting. Appellant’s petition for rehearing was also denied. 464 U.S. 1013 , 104 S.Ct. 539 , 78 L.Ed.2d 718 (1983).

Eventually the case found its way back to the circuit court, where appellant filed a supplemental motion to dismiss and a supplemental motion to suppress, both based ⁵⁹⁷ upon the Smiley interpretation of § 416D. The supplemental motion to dismiss asserted, inter alia, that in the absence of any claim of obscenity there was no probable cause for the issuance of the charging documents and that the charging documents were defective for failure to allege an essential element of the offense, namely, obscenity. The supplemental motion to suppress asserted that, since obscenity was never considered, the application for the search warrant did not contain probable cause for its issuance. It also contended that the search warrant was overbroad and, therefore, a general warrant; that the massive seizure was unlawful; and that Randall Book Corporation was not afforded an adversary hearing prior to seizure to determine whether the material seized was obscene or non-obscene literature protected by the First Amendment.

Both motions were denied, and the case was finally brought to trial before a jury in July 1984. The State abandoned all counts based upon subsection 416D(b), knowingly permitting the material to be displayed for advertising purposes, leaving 126 counts (one for each magazine named in the charging documents) based upon subsection 416D(a), exhibiting the magazine for advertising purposes. The jury returned 116 guilty verdicts and 10 not guilty verdicts, and the court imposed a fine of $500 for each conviction. 5 Payment of the fines was suspended pending the outcome of this appeal. Issues Although the convictions necessarily required a finding that the covers of the magazines were obscene, we are not asked by appellant to determine whether they are in fact obscene under the test stated in Miller v. California, 413 U.S. 15 , 93 S.Ct. 2607 , 37 L.Ed.2d 419 (1973).

Nor are we asked to determine whether the proprietor of a bookstore who places magazines on a rack in a room from which minors are intended to be excluded is “displaying” the ⁵⁹⁸ covers of those magazines “for advertising purposes” within the meaning of the statute, or whether, under the Rule of Lenity, a single display of 116 magazines in violation of § 416D is punishable as one offense or as 116 offenses. 6 The only issues raised by appellant are: (1) Was the massive seizure of hundreds of books, magazines and films from defendant book store pursuant to a search and seizure warrant which failed to address the First Amendment implications of the seizure, improper, and hence, did the trial court err in failing to grant defendant’s motion to suppress the evidence obtained as a result of the search and seizure? (2) Is Section 416D of article 27 unconstitutionally over-broad in its application? (3) Did the lower court err in allowing the State to re-open its case? (4) Did the trial court err by prohibiting applicant from reading the preamble to the statute in closing argument?

Our answer to each of these questions being “No,” we will affirm the judgments of the circuit court. I. Appellant first contends that all of the materials seized by the police and placed in evidence should have been suppressed at trial because the warrant on which the seizure was made was improper and defective. Appellant argues, first, that the application for the warrant and its supporting affidavit did not provide sufficient facts and background for the issuing judge to find probable cause to believe that the statute was being violated and second, that the warrant as issued was overbroad, that is, that it lacked the requisite specificity to apprise the police of which partic ⁵⁹⁹ ular items they could seize or to guard against the wrongful seizure of material protected by the First Amendment. Elaborating on its argument that the application and affidavit did not establish probable cause to conclude that appellant was in violation of the statute, appellant asserts that the application and affidavit failed to contain a description sufficient to allow the issuing judge to conclude that any of the magazines or other materials seized fell within the purview of the statute.

This assertion is unfounded. The affiants provided the judge with an adequate description of the premises