Combs v. United States, 408 U.S. 224 (1972)
Case details
Citation
408 U.S. 224
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
June 26, 1972
Opinion
Per curiam
Concurrence
Douglas (Justice) in judgment 408 U
Concurrence
Stewart (Justice) in the judgment
COMBS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 71-517. Argued April 11, 1972-Decided June 26, 1972
Petitioner was convicted of receiving, possessing, and roncealing whiskey known by him to have been stolen from an interstate shipment. Prior to his trial, the District Court had denied a motion to suppress the whiskey from evidence on the contention that there had been no showing of probable cause to support issuance of the warrant authorizing the search for the whiskey. The petitioner raised only the validity of the warrant on his appeal, b11t the Court of Appeals held that he lacked standing to <'hallenge the legality of the search, which had occurred on his father's farm where petitioner was not living or pres<'nt at the time of the search. Held: Since the Government 110w suggests that the warrant was invalid, and since the record is inadequate for a determination of whether petitioner had itn interest in the searched premises that would afford him standing under Mancusi v. DeForte, 392 U. S. 364, to challenge the legality of the search, the judgment of the Court of Appeals is vacated and the case remanded for further procei>dings. 446 F. 2d 515, vacated and remanded.
James N. Perry argued the cause for petitioner. With him on the brief was William F. Hopkins.
William Bradford Reynolds argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Petersen, Beatrice Rosenberg, and Roger A. Pauley.
PER CumAM. We granted certiorari on claims that evidence introduced against petitioner was obtained through an unlawful search that petitioner has standing to challenge. The Govemment 110w suggests that the warrant authorizing the search was invalid, but that further factual deter-
COMBS v. UNITED STATES 225
minations are required to resolve the question of petitioner's standing to challenge the admission in evidence of the allegedly stolen goods seized ~by Government agents.
Petitioner and his father were convicted after a joint trial1under an indictment charging them with having violated 18 U. S. C. § 659 " by receiving, possessing, and concealing 26 cases of tax-paid whiskey known by them to have been stolen from an interstate shipment. The Government's evidence at trial tended to show that petitioner delivered 40 cases of whiskey to the Newport, Kentucky, home of a Mrs. Ballard, who had previously expressed her willingness to buy it. The day after the delivery, Mrs. Ballard, having sold some of the whiskey but having thereafter heard that it was stolen property, telephoned petitioner and told him to remove the remainder of the whiskey from her home. Petitioner and one Martin then moved the whiskey to the home of petitioner's estranged wife; a few days later, however, petitioner telephoned Martin and told him that "the heat was on" and the whiskey would have to be moved once again. The two men then transported the whiskey to
1
Both men were convicted, but petitioner's father did not appeal; another codefendant at the trial was petitioner's brother, who was acquitted on a related charge.
40h l ' . S.
Hazard, Kentucky, ·where they stored it in a shed on a farm owned by petitioner's father .
Sometime later, l\1artin told an FBI agent of the stolen whiskey; when the agent in turn passed the information on to the Kentucky state police, the latter obtained a warrant authorizing a search for, and seizure of, the whiskey at the property of petitioner's father. The warrant was supported by a11 affidavit, which the Government now suggests \\'as insufficient under the holding of Aguilar v. Texas, 378 U.S. 108 (1964). Armed with that warrant, the state police went to the farm owned by petitioner's father and conducted a search, which led to the
fied
discovery and seizure of 26 cases of whiskey identi as having been stolen from a raikoad shipment intended for delivery to the Michigan Liquor Control Board. Petitioner \Vas not living on his father's property, nor was he preseut there when the search and seizure took place.
Prior to trial, the deff'ndants jointly moved the District Court to suppress the whiskey from evidence on the ground that there was no showing of probable cause to support the issuance of the warrant. The District Court, following an evidentiary hearing,3 denied the motion on the merits, and the evidence was subsequently introduced at trial. Following the conviction of petitioner and his father, only the petitioner appealed, raising the single issue of the validity of the warrant; the Court of Appeals did not reach the merits of his claim respecting the warrant, however, holding only that he lacked standing to challenge the legality of the sear<'h and seizure. 446 F. 2d 515.
In concluding that petitioner lacked such standing, the
Court of Appeals noted, inter alia, that he had "asserted
3
No evidence relating to petitioner's standing was introduced at the hearing.
COMBS v. UNITED STATES 227
no possessory or proprietary claim to the searched premises" during the course of the trial. 446 F. 2d, at 516. Clearly, however, petitioner's failure to make any such assertion, either at the trial or at the pretrial suppression hearing, may well be explained by the related failure of the Government to make any challenge in the District Court to petitioner's standing to raise his Fourth Amendment claim. In any event, the rrcord now before us is virtually barren of the facts necessary to determine whether petitioner had an interest in connection with the searched premises that gave rise to "a reasonable expectation [on his part] of freedom from governmental intrusion" upon those premises. Mancusi v. DeForte, 392 1J. S. 364, 368 (1968).4 If petitioner can establish facts showing such an interest, he will have demonstrated a basis for standing to attack the search; re-examination of the validity of the warrant in light of the Government's present position on that issue would then be
4
The Court in Mancusi relied upon Jones v. United States, 362 U. S. 257 (1960), as ha\'ing done away with "the requirement that to establish standing one must show legal possession or ownership of the searched premises." 392 U. S., at 369. In Jones, the Conrt held that the petitioner then before it had standing and enunciated two rules as alternative grounds for its derision. First, the Jones Court ruled that the "possession on the basis of which [an accused] is to be ... convirted suffices to give him standing under any fair and rational conception of the requirements of Rule 41 (e)," Fed. Rule Crim. Proc.; second, the Court ruled that "anyone legitimately on premises where a search occur~" has standing to challenge the legality of that search. 362 U. S., at 264, 267. The Government has urged that we take the opportunity, said to be presented by the instant case, to re-examine the first alternative holding of Jones. Even assuming we were disposed to do so, the Court of Appeals did not, in the opinion it filed in this case, deal with the question whether the nature of the charge against petitioner brought his case within the coverage of the first aspert of the Jones holding, and we decline to reach or consider issues not yet passed on by that court.
Per Curiam 408 u. s.
appropriate to resolve the question whether evidence of the seized whiskey was properly introduced at petitioner's trial.
Since there has not yet been any factual determination of whether petitioner had an interest in the searched premises that was protectible under the doctrine of Mancusi v. DeForte, we vacate the judgment of the Court of Appeals and remand with directions that the case be sent back to the District Court for further proceedings consistent with this opinion.
Vacated and remanded.
MR. JUSTICE DOUGLAS concurs in the result.
KOIS v. WISCONSIN
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF WISCONSIN
No. 71-5625. Decided June 26, 1972
Petitioner was convicted under an obscenity statute for publishing in his underground newspaper pictures of nudes and a sex poem. The State Supreme Court upheld the conviction as not violative of the Fourteenth Amendment. Held: In the contc>xt in which they appeared, the photographs were rationally related to a news article, in conjunction with which they appeared, and were entitled to l<'ourteenth Amendment. protection. In view of the poem's content and placement with other porms inside the newspaper, its dominant theme cannot be said to appeal to prurient interest. Roth v. United States, 354 U. S. 476. Certiorari granted; 51 Wis. 2d 668, 188 N. W. 2d 467, reversed.
PER CuRIAM. Petitioner was convicted in the state trial court of violating a Wisconsin statute prohibiting the dissemination of "lewd, obscene or indecent written matter, picture, sound recording, or film. " Wis. Stat. § 944.21 (1) (a) (1969). He ,vas sentenced to consecutive one-year terms in the Green Bay Reformatory and fined $1,000 on each of tv.ro counts. The Supreme Court of Wisconsin upheld his conviction against the contention that he had been deprived of freedom of the press in violation of the Fourteenth Amendment. 51 Wis. 2d 668, 188 N. W. 2d 467.
Petitioner was the publisher of an underground newspaper called Kaleidoscope. In an issue published in May 1968, that newspaper carried a story entitled "The One Hundred Thousand Dollar Photos" on an interior page. The story itself was an account of the arrest of one of Kaleidoscope's photographers on a charge of pos-
Per Curiarn 408 U.S.
session of obscene material. Two relatively small pictures, showing a nude man and nude woman embracing in a sitting position, accompanied the article and were described in the article as "similar" to those seized from the photographer. The article said that the photographer, while waiting in the district attorney's office, had heard that bail might be set at $100,000. The article went on to say that bail had in fact been set originally at $100, then raised to $250, and that later the photographer had been released on his own recognizance. The article purported to detail police tactics that were described as an effort to "harass" Kaleidoscope and its staff.
Roth v. United States, 354 U. S. 476 (1957), held that obscenity was not protected under the First or Fourteenth Amendments. Material may be considered obscene when "to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." 354 U. S., at 489. In enunciating this test, the Court in Roth quoted from Thornhill v. Alabama, 310 u. s. 88, 101-102:
"The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive administration developed a broadened conception of these liberties as adequate to supply the public need for information and education with respect to the significant issues of the times ...." (Emphasis supplied.)
We do not think it can fairly be said, either considering the article as it appears or the record before the state p. 231court, that the article was a mere vehicle for the publication of the pictures. A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication, but if these pictures were indeed similar to the one seized-and we do not understand the State to contend differently-they are relevant to the theme of the article. We find it unnecessary to consider whether the State could constitutionally prohibit the dissemination of the pictures by themselves, because in the context in which they appeared in the newspaper they were rationally related to an article that itself \Vas clearly entitled to the protection of the Fourteenth Amendment. Thornhill v. Alabama, supra. The motion for leave to proceed in f orrna pauperis and the petition for ,.,Tit of certiorari are granted. The conviction on count one must therefore be reversed.
In its August 1968 issue, Kaleidoscope published a two-page spread consisting of 11 poems, one of which was entitled "Sex Poem." The second count of petitioner's conviction was for the dissemination of the newspaper containing this poem. The poem is an undisguisedly frank, play-by-play account of the author's recollection of sexual intercourse. But, as the Roth Court emphasized, "sex and obscenity are not synonymous. . . . The portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press." 354 U. S., at 487. A reviewing court must, of necessity, look at the context of the material, as well as its content.
In this case, considering the poem's content and its placement amid a selection of poems in the interior of a newspaper, we believe that it bears some of the earmarks of an attempt at serious art. While such earmarks are not inevitably a guarantee against a finding of obscenity, and while in this case many would conclude
DouGLAS, J., concurring in judgment 408 U.S.
that the author's reach exceeded his grasp, this element must be considered in assessing whether or not the ''dominant" theme of the material appeals to prurient interest. \Vhile "contemporary community standards," Roth v. United States, 354 U. S., at 489, must leave room for some latitude of j udgment, and while there is an undeniably subjective element in the test as a whole, the "dominance" of the theme is a question of constitutional fact. Giving due weight and respect to the conclusions of the trial court and to the Supreme Court of Wisconsin, we do not believe that it can be said that the dominant theme of this poem appeals to prurient interest. The judgment on the second count, therefore, must also be reversed.
Reversed.
MR. JUSTICE STEWART concurs in the judgment.
MR. JUSTICE DouGLAS, concurring in the judgment.
I concur in the judgment because neither logic, history, nor the plain meaning of the English language will support the obscenity exception this Court has engrafted onto the First Amendment.
This case, moreover, is further testimony to the morass in which this Court has placed itself in the area of obscenity. Men are sent to prison under definitions which they cannot understand, and on which lower courts and members of this Court cannot agree. Here, the Court is forced to examine the thematic content of the two newspapers for the publication of which petitioner was prosecuted in order to hold that they are constitutionally protected. Highly subjective inquiries such as this do not lend themselves to a workable or predictable rule of law, nor should they be the basis of fines or imprisonment.
In this case, the vague umbrella of obscenity laws was used in an attempt to run a radical newspaper out of p. 233229 DouGLAti, J., conrurring in judgment
business and to impose a two-year sentence and a $2,000 fine upon its publisher. If obscenity laws continue in this uneven and uncertain enforcement, then the vehicle has been found for the suppression of any unpopular tract. The guarantee of free expression will thus be diluted and in its stead public discourse will only embrace that which has the approval of five members of this Court.
The prospect is not imaginary now that the Bill of Rights, applicable to the States by reason of the Fourteenth Amendment, is coming to be a "watered down" version, meaning not what it says but only what a majority of this Court thinks fit and proper.
2
Section 659 provides as follows: "Whoever ... unlawfully takes, carries away, or conceals, or by fraud or deception obtains from any ... railroad car ... or other vehicle, or from any ... station house, platform or depot ... with intent to convert to his own use any goods or chattels moving as or which are a part of ... an interstate or foreign shipment ... ; or "Whoever buys or receives or has in his possession any such goods or chattels, knowing the same to have been embezzled or stolen; ... "Shall ... be fined not more than $5,000 or imprisoned not more than ten years, or both ...."