United States v. Middleton (599 F.2d 1349, 1979)

AINSWORTH, Circuit Judge:

This is a prosecution for interstate transportation of the allegedly obscene motion picture “Illusions of a Lady.” The indictment charged various defendants with one count of knowingly using a common carrier to ship an obscene film interstate, in violation of 18 U.S.C. §§ 1462 and 2; one count of knowingly receiving from a common carrier an obscene film that had been transported interstate, in violation of 18 U.S.C. §§ 1462 and 2; and one count of conspiracy under 18 U.S.C. § 371 to violate section 1462 The Government appeals from the order of the district court granting defendants’ motions to suppress the film as evidence. The trial judge found that the United States magistrate issued the warrant to seize a print of the movie without probable cause. As we conclude, however, that probable cause of the film’s obscenity existed, we hold that the district judge erred in his ruling and reverse.

I. Facts

We take the facts pertinent to this appeal from the affidavit of FBI Special Agent Frank Quijada, which was filed with the United States magistrate in support of Qui-jada’s application for a search warrant. The affidavit read in full as follows:

AFFIDAVIT FOR SEARCH WARRANT

I, Frank S. Quijada, affiant, being duly sworn deposes and says:

1. Affiant is employed as a Special Agent with the Federal Bureau of Investigation (FBI), United States Department of Justice. Affiant has been assigned to the investigation of the interstate transportation of obscene matter, within the jurisdiction of the FBI.

2. Affiant has conducted an investigation of the Sinerama Adult Theatre, 3615 Tulane Avenue, New Orleans, Louisiana, and as a result of my personal participation in the investigation, I have personal knowledge of the facts set out in this affidavit.

3. Affiant, based on the facts set forth in this affidavit, now has reason to believe and does believe that on the premises known as the Sinerama Adult Theatre, further described as a beige colored brick, glass fronted building appearing from the outside to be two stories, with a portico facing Tulane Avenue displaying three signs, one on each of three sides, stating Adult Sinera-ma Theatre. The words Adult and Theatre are written in black and the word Sinerama is in white block letters. The letters S, N, R, and M of Sinerama are on a red background and the letters I, E, A, and A are on a blue background. The Sinerama Adult Theatre is located at 3615 Tulane Avenue, and is bounded on the west side by South Telemachus Street and on the east side by South Genois.

4. The basis for affiant’s beliefs set forth above are as follows:

5. On July 6, 1976, I observed an advertisement in the movie section of the “Times-Picayune” newspaper, New Orleans, Louisiana, dated July 6, 1976, for the Siner-ama Adult Theatre, 3615 Tulane Avenue, New Orleans, Louisiana, telephone 488-3731. This advertisement stated that the currently featured movies playing at the Sinerama Adult Theatre were “Hullucination of a Lady” plus “Black Socks.” This advertisement listed the address for the Sinerama Adult Theatre as 3615 Tulane Avenue, New Orleans, Louisiana, and listed the theatre telephone number as 488-3731.

6. On July 7, 1976, at approximately 11:05 A.M., I called telephone number 488-3731 and a male answered by saying “Siner-ama Theatre.” When I asked what features were currently playing at the Sinera-ma, the individual advised that the features were “Illusions” and “Black Socks.”

7. On July 6,1976,1 contacted Robert E. Parrish of Film Inspection Service, 2411 Edenborn Avenue, Metairie, Louisiana. Parrish provided Film Inspection Service records to me which contained the below-described information:

a. Records revealed that the films entitled “Illusions of a Lady” and “Black Socks” were received by the Film Inspection Service, Metairie, Louisiana, on July 1, 1976, and that the films arrived from Atlanta, Georgia, where they had been shipped under Profit by Air Bill Number 30697741.

b. Records revealed that the films were given to the Sinerama Adult Theatre, New Orleans, Louisiana, on July 1, 1976, for a play date of July 2, 1976 through July 8, 1976.

c. Records revealed that the film “illusions of a Lady” consisted of eight 1,000-foot reels.

8. On July 7, 1976, Special Agent (SA) Aloysius J. McFall viewed the color movie “Illusions of a Lady” at the Sinerama Adult Theatre, 3615 Tulane Avenue, New Orleans, Louisiana, after paying an admission price of $5.00. The below is a description of the color movie “Illusions of a Lady” as described to me by SA McFall.

a. SA McFall advised me that the credits that appear at the beginning of the film show the title of the film to be “Illusions of a Lady” with two subordinate titles. He further advised that the credits show that the film is a Jonas Middleton Production starring Andrea True.

b. SA McFall advised me that at approximately 10:15 AM the movie, “Illusions of a Lady” began with a scene showing a white male model kissing the breast, thighs and vagina of a white female model. The male model is shown performing cunnilingus on the vagina of the white female and penetration by the tongue of the white male of the vagina is explicitly shown.

c. SA McFall advised me that another scene shows a white female model sitting on a couch and a white male model kneeling in front of the female. The female grabs the head of the male and she pulls it on to her vaginal area.

d. SA McFall advised that the movie contains a scene where a white male model is kissing a white female and that the female then assumes a reclining position on a table and that the male model is observed mounting the female and inserting his penis into her vagina. Sexual intercourse is explicitly shown with penetration from different angles.

e. SA McFall advised me that the movie contains a homosexual scene wherein two white nude females are observed performing the act of cunnilingus on each other with penetration of the tongue of the vagina clearly shown.

f. SA McFall advised me that the movie shows a scene where a white female model performs the act of fellatio on a white male model. The scene shows the penis of the male model penetrating into the mouth of the female while the female simultaneously masturbates the penis of the male.

g. SA McFall advised me that the film contains a scene wherein a white male model is observed to lay out the undergarmets of a female in the relative position as if they where on a woman. The, male is observed fondling each piece of undergarmet and smells the panties before putting them on the rug. The male model fondles his penis and then lays on top of the undergar-mets and performs hip motions as if he is engaged in the act of intercourse with the panties. The male model then dresses himself in the female undergarmets.

h. SA McFall advised me that the movie contains another homosexual scene where two white female models are observed kissing each other on the mouth and then one female model performing the act of cunnilingus on the second female with penetration of the tongue of the vagina clearly shown from different angles.

i. SA McFall advised me that the movie contains a scene wherein a white male model is shown masturbating his penis while at the same time fondling and kissing the heel of a black shoe. The male continues to masturbate until he ejaculates onto some female undergarmets which are in front of his penis. After the male ejaculates on the undergarmets he urinates on them.

j. SA McFall advised me that the movie contains a scene of unnatural sexual activity. A white female model inserts a carrot into her vagina and penetration of the carrot into the vagina is clearly shown. While the female inserts the carrot into her vagina she masturbates her clitoris with her other hand. The female then withdraws the carrot from her vagina and licks it with her tongue several times.

k. SA McFall advised me that the movie shows another scene of unnatural sexual activity when a white male model masturbates while a white female model holds a spoon in front of his penis. The male ejaculates and semen is shown falling on the spoon. The female then places her right index finger in the semen and then puts the right index finger in her mouth. The female then pours the semen in the spoon into a metal teapot and pours hot water into the teapot.

l. SA McFall advised me that the movie contains a scene of group sex involving three white female models and two white male models. A female model is observed inserting a cucumber into her vagina and subsequently removing it and inserting it into her mouth. A male is observed performing the act of cunnilingus on a female and penetration of the tongue into the vagina is explicitly depicted. A female performs the act of fallatio on a male and penetration of the penis into the mouth is clearly shown. Two females then perform fallatio on the penis of one of the males and insertion of the penis into the mouth of the female is clearly shown as is the kissing of the scrotums by the second female. The male then ejaculates on to the face and semen is clearly shown on the face of one of the females.

m. SA McFall advised me that the movie contains another scene of group sex wherein two white male models grab a white female model and one of the male models performs the act of sexual intercourse on the female with penetration clearly shown. While one male model performs intercourse on the female the second male appears to be striking the female with a black leather strap. After the two males perform intercourse with the female the two males then perform sexual intercourse and cunnilingus with three other females.

n. SA McFall advised me that the film ended at approximately 11:20 AM.

o. WHEREFORE, your affiant prays that a search warrant be issued to any Special Agent of the Federal Bureau of Investigation, a branch of the United States Department of Justice, authorizing him to conduct a search in the daytime on the premises located at the Sinerama Adult Theatre, 3615 Tulane Avenue, New Orleans, Louisiana; and authorizing him to take from the' premises all such things as described above found anywhere in the premises including but not limited to the currently featured obscene color movie entitled “Illusions of a Lady”, records, waybills, feight bills, bills of lading, invoices, order forms, delivery and/or payment receipts, cancelled checks, statements and other items to the end that same may be dealt with according to law.

s/Frank S. Quijada

FRANK. S. QUIJADA

Special Agent

Federal Bureau of Investigation

Sworn to before me, and subscribed to in my presence this 8th day of July, 1976.

s/Ingrid O. Johannesen

United States Magistrate,

Eastern District of Louisiana

On July 8, the United States, magistrate issued a warrant, pursuant to which FBI agents searched the Sinerama and seized the theatre’s copy of “Illusions of a Lady.” A grand jury subsequently indicted defendants, who then filed motions to suppress and return “all evidence seized by government agents on the ground[ ] . . . that the search warrant was issued without probable cause.” They contended that Agent Quijada’s affidavit “fails to inform the magistrate whether” the twelve scenes of explicit sex therein described “are representative of all portions in the movie” and “whether the film contains a story line, dialogue, narrative or any portions of a non-sexual nature.” Defendants argued that the magistrate was therefore unable to determine, as Miller v. California dictates, the probable obscenity of the film “taken as a whole.” 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973).

The district judge agreed with that contention and granted the suppression motions. He noted “the strict standards for obtaining a warrant for material which has presumptive First Amendment protection,” stated that the Miller obscenity test “require^] examination of the work as a whole,” and concluded that “the description of the film in the affidavit is incomplete on its face and could not have provided the magistrate with an opportunity to ‘focus searchingly’ upon the issue of obscenity under the definition contained in Miller.” Observing that the “affidavit does not reveal the approximate length of time devoted” to the explicit sex scenes, “so that it is not apparent whether the scenes comprise the entire film or a minute portion of it,” the trial court held “that the affidavit is insufficient to support a finding that the film is obscene.” (emphasis added)

II. The District Court’s Failure to Apply the Proper Standard

A search and seizure involving material “presumptively under the protection of the First Amendment” must clear “a higher hurdle in the evaluation of reasonableness” under the Fourth Amendment than must similar actions aimed at mere contraband, “because we examine what is ‘unreasonable’ in the light of the values of freedom of expression.” Roaden v. Ken tucky, 413 U.S. 496, 504, 93 S.Ct. 2796, 2801, 37 L.Ed.2d 757 (1973). See Lee Art Theatre v. Virginia, 392 U.S. 636, 637, 88 S.Ct. 2103, 2104, 20 L.Ed.2d 1313 (1968); Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1964); Marcus v. Search Warrants, 367 U.S. 717, 732, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127 (1961). To safeguard those values, the Supreme Court has prescribed a “step in the procedure before seizure designed to focus searchingly on the question of obscenity,” Marcus v. Search Warrants, supra, 367 U.S. at 732, 81 S.Ct. at 1716; Lee Art Theatre v. Virginia, supra, 392 U.S. at 637, 88 S.Ct. at 2104, so that a warrant is issued after an independent determination by a neutral magistrate, rather than “solely upon the conclusory assertions of the police officer.” Lee Art Theatre v. Virginia, supra, 392 U.S. at 637, 88 S.Ct. at 2104; Marcus v. Search Warrants, supra, 367 U.S. at 732, 81 S.Ct. at 1716.

The district judge apparently reasoned, given this “searching focus” requirement, that a warrant may not issue unless the underlying affidavit is sufficient “to support a finding that the film is obscene.” To