United States v. Alexander

313 F. Supp. 687, 1969 U.S. Dist. LEXIS 13899
CourtDistrict Court, D. Minnesota
DecidedApril 25, 1969
DocketNos. 1-377 to 1-379 REC
StatusPublished
Cited by4 cases

This text of 313 F. Supp. 687 (United States v. Alexander) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alexander, 313 F. Supp. 687, 1969 U.S. Dist. LEXIS 13899 (mnd 1969).

Opinion

ORDER

NORDBYE, District Judge.

This proceeding is before the Court on a motion to suppress filed by the above-named movants seeking to suppress for use as evidence in any hearing or trial all items seized under three search warrants for the search in the daytime of (1) 8th Floor, Edison Building, Minneapolis, Minnesota; (2) 3rd Floor, Edison Building, Minneapolis, Minnesota; (3) the Economy Book Store adjacent to 417 Hennepin Avenue, Minneapolis, Minnesota.

The search warrants in question were issued on February 8, 1969, under Rule 41, Federal Rules of Criminal Procedure, by a United States Commissioner, District of Minnesota, on the affidavits of one Richard A. Anderson, an agent of the Federal Bureau of Investigation, and certain exhibits, said affidavits being dated February 8, 1969. The affidavits upon which the three search warrants were issued are substantially the same and one of them is attached hereto as Exhibit A. The returns are also attached and marked Exhibit B. The searches were consummated on February 8,1969.

The motion to suppress sets forth the grounds therefor as follows: (1) The seizures under the search warrants were illegal because the search warrants were issued without a prior judicial determination in an adversary hearing as to the obscenity of the items seized, in contravention of Amendment I, Constitution of the United States; (2) there was not probable cause for believing that the items listed in the search warrant were used or intended for use as a means of committing the criminal offenses referred to in the warrants, or that movants had committed or intended to commit the offense referred to in said warrants; (3) there was not probable cause for believing that the movants herein had any connection with the items listed in the search warrants; (4) the items seized under the search warrants were not the items described therein; (5) the search warrants were illegally executed in that the officers executing them seized a great number of items, none of which were described in the search warrants; and (6) the search was unreasonable and the warrants illegally issued because the search and search warrants were based upon an affidavit which had attached to it items which had been illegally obtained.

That there was sufficient probable cause for the issuance of the three search warrants by the United States Commissioner and the searches and seizures which were made thereon and in accordance therewith by the agents of the Federal Bureau of Investigation, on this showing, at least, seems clear. The fortuitous circumstances as disclosed in the affidavits before the Commissioner which prompted the Emery Freight Company to make an examination in New York of certain air shipments destined to the Cloister House Gifts, 8th Floor, Edison Building, 417 Hennepin Avenue, Minneapolis, Minnesota, was carried on within the authority granted to an interstate carrier under the tariff regulations. The Commissioner who issued the search warrants not only had the detailed affidavits of the F. B. I. agent as to the obvious obscenity of the contents of the shipment, but, in addition, there were submitted to him a copy of the photographic magazine called “Paris” and a film which had been taken from the shipment in New York and sent to the F. B. I. agents in Minneapolis before the search warrants were issued and which articles lent compelling credence to the contents of the affidavits of the F. B. I. agent which stated that the material in the shipment was designed and intended to be used as a means for committing a [689]*689criminal act under Section 1462, U.S.C., Title 18. This section reads, in part,

“Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce—
“(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or
“Whoever knowingly takes from such express company or other common carrier any matter or thing the carriage of which is herein made unlawful — * * *”

The only question of any import presented herein is whether these movants should have been afforded an adversary hearing before any seizure was authorized by the United States Commissioner. It may be noted in passing, however, that there is no showing or even contention that on any adversary hearing the material seized could conceivably be shown to be of a nonobscene nature. The movants rely primarily upon a Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809. The majority of the court in that case held, at pp. 206, 207, and 208, 84 S.Ct. at p. 1724:

“Under a Kansas statute authorizing the seizure of allegedly obscene books before an adversary determination of their obscenity and, after that determination, their destruction by burning or otherwise, the Attorney General of Kansas obtained an order from the District Court of Geary County directing the sheriff of the county to seize and impound, pending hearing, copies of certain paperback novels at the place of business of P-K News Service, Junction City, Kansas. After hearing, the court entered a second order directing the sheriff to destroy the 1,715 copies of 31 novels which had been seized. The Kansas Supreme Court held that the procedures met constitutional requirements and affirmed the District Court’s order. 191 Kan. 13, 379 P.2d 254. Probable jurisdiction was noted, 375 U.S. 919, 84 S.Ct. 268, 11 L.Ed.2d 163. We conclude that the procedures followed in issuing the warrant for the seizure of the books, and authorizing their impounding pending hearing, were constitutionally insufficient because they did not adequately safeguard against the suppression of nonobscene books. For this reason we think the judgment must be reversed. Therefore we do not reach, and intimate no view upon, the appellants’ contention that the Kansas courts erred in holding that the novels are obscene.”

But however far reaching the decision of the Supreme Court in that case may be regarding the denunciation of laws and procedure, which, without an adversary hearing, operate as a restraint upon the circulation and dissemination of books, magazines, motion picture films, etc., in violation of the constitutional restrictions directed against the abridgement of freedom of speech and press, it would be an undue and shockingly unwarranted extension of the protection granted by the Federal Constitution under Amendment I to extend the principles elucidated in Books to the present situation. Here, we are not dealing with books and films having currency in the daily lives of the American people. The record before the United States Commissioner unmistakably establishes, and this is not denied, that this shipment in commerce from New York to Minneapolis to these movants consisted of hard-core obscenity. And as observed by Mr. Justice Stewart in his concurring opinion in Books, page 214, 84 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
313 F. Supp. 687, 1969 U.S. Dist. LEXIS 13899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alexander-mnd-1969.