DOLLREE MAPP, etc., Appellant,
THE STATE OF OHIO, Appellee.
March 29, 1961
The above-entitled matter came on for oral argument, pursuant to notice,
EARL WARREN, Chief Justice of the United States
HUGO L. BLACK, Associate Justice
FELIX FRANKFURTER, Associate Justice
WILLIAM O. DOUGLAS, Associate Justice
TOM C. CLARK, Associate Justice
JOHN M. HARLAN, Associate Justice
WILLIAM J. BRENNAN, JR., Associate Justice
CHARLES E. WHITTAKER, Associate Justice
POTTER STEWART, Associate Justice
A. L. KEARNS, ESQ., 1101 Hippodrome Building, Cleveland 14 Ohio; on behalf of Appellant.
BERNARD A. BERKMAN, ESQ., Standard Building, Cleveland, Ohio; on behalf of the American Civil Liberties Union, et al., as amicus curiae, urging reversal.
GERTRUDE BAUER MAHON, ESQ., Criminal Courts Building, Cleveland, Ohio; on behalf of Appelleee.
MR. CHIEF JUSTICE WARREN: Dollree Mapp, et cetera, appellant, versus Ohio.
THE CLERK: Counsel are present.
MR. CHIEF JUSTICE WARREN: Mr. Kearns.
ORAL ARGUMENT OF A. L. KEARNS, ESQ.,ON BEHALF OF APPELLANT
MR. KEARNS: Mr. Chief Justice, this Honorable Court, if the Court please:
We have a situation here arising in Cuyahoga County, Ohio. The defendant-appellant in this case was living in a residential neighborhood, owned her own home, and living there in a two-family house on the second floor, having rented the first floor to another tenant. She lived there with a daughter approximately eleven years of age. The evidence in this case disclosed that she is a woman without any record whatsoever from the criminal point of view—a decent, respectable American citizen.
One day these police officers of the City of Cleveland, three in number—and the record sets forth the occurrence came to the house and wanted to be admitted for the purpose of making a search. When they rapped at the door or rang the bell, she looked out the window and asked them what they wanted. And they said that they wanted to search the house.
THE COURT: What time of the day was this, day or night?
MR. KEARNS: In the daytime.
THE COURT: On a weekday? On a weekday in the daytime?
MR. KEARNS: Weekday, yes.
And she said that she would call her lawyer and see what he said. Now, the evidence discloses that the police officers claimed that they were informed that there was some paraphernalia for the numbers game in the house, and they were also informed that a person wanted for questioning in a bombing was in the house.
She called her lawyer, Mr. Greene, who is my associate; and he said to her: If they have a search warrant, you permit them in to the house. So she told them that they’d have to have a search warrant.
One of the police officers then called his chief, a Lieutenant Cooney, and told him he couldn’t get into the house because she required a search warrant. And within a few minutes thereafter — several zone cars with many police officers surrounded the house. Then, the evidence discloses, at least two of the police officers who knew—one was Sergeant Delau—knew what he was there for, but made no effort to procure a search warrant. Neither one of them did. But they testified that a search warrant was procured by a Lieutenant White.
Now, they didn’t know about it. The evidence discloses that they were told that a search warrant had been procured.
When they came to the house with the search warrant—or I supposed search warrant—by the time they arrived, Mr. Greene I was also there.
THE COURT: You say “supposed search warrant”?
MR. KEARNS: There was no search warrant, Your Honor. I intend to go to that from the evidence as we proceed.
This Lieutenant White came and showed a piece of paper, and Mrs. Mapp demanded to see the paper and to read it, see what it was, which they refused to do, so she grabbed it out of his hand to look at it. And then a scuffle started, and she put this piece of paper into her bosom. And, very readily the police officer put his hands into her bosom and removed the paper, and thereafter, thereafter handcuffed her while the police officers started to search the house.
Now, the evidence in the case discloses that the State claims there were only seven police officers, some in uniform. Mr. Greene, who was there and was not permitted entrance to the house, but who was kept outside, says there were approximately twelve police officers in all.
Now, the evidence discloses that no search warrant existed although they claimed there was a search warrant. There is absolutely no evidence of any magistrate that had been asked for a search warrant; there was no record of a search warrant. We asked during the trial of the case that the search warrant be produced and it was not. The fact of the matter is that our own supreme court found that it was very questionable as to whether there was a search warrant in this case.
THE COURT: What was the piece of paper? Did that get identified?
MR. KEARNS: We don’t know what it was. She was not given an opportunity to read it. She doesn’t know what it was. It was a piece of white paper. But the police officers never produced it, because, as a matter of fact, if it please Your Honors, I waited in the trial of the case for Lieutenant White, who was supposed to be the man who procured the search warrant, to take the stand so that at least I could cross-examine him as to where, when and how he procured the search warrant and what the search warrant contained. But the State was clever enough not to put him on the stand; and no other police officer knew anything about it.
THE COURT: You couldn’t have called him?
MR. KEARNS: If I called him, Your Honor, I would have made him my witness.
THE COURT: I know, but hostile witnesses - one has freedom with a hostile witness.
MR. KEARNS: I agree, we have freedom with hostile witnesses. But I’ve been practicing criminal law for a number of years, and I know what a police officer of experience can do to you if you’re not careful, as far as a jury is concerned.
THE COURT: Anyhow, you didn’t call him.
MR. KEARNS: I did not, I did not.
But the prosecutor promised—and we have the prosecutor here—that the search warrant would be produced, and it never was. So the situation is that the home was entered, the place was searched from cellar to roof by all these police officers. They found some paraphernalia in the basement pertaining to some lottery, belonging - later it developed to someone else, the tenant downstairs, and she was tried for that and was acquitted. And following the acquittal as to the paraphernalia, she was then arrested and tried for having in her possession obscene literature.
THE COURT: Tried and acquitted of what charge?
MR. KEARNS: Of having in her possession policy paraphernalia.
THE COURT: And was the—
MR. KEARNS: It was in the basement in a trunk.
THE COURT: And was the trial for possession of obscene literature the same day, immediately following?
MR. KEARNS: Oh, no.
THE COURT: I see.
MR. KEARNS: Later, and in an entirely different court.
THE COURT: Was the prosecution by information or indictment or what?
MR. KEARNS: The prosecution for the literature was by indictment, whereas the prosecution for the paraphernalia in the gambling transaction was by affidavit.
THE COURT: How much time elapsed between the two trials?
MR. KEARNS: If I recall correctly, there was almost a year.
THE COURT: And had the indictment for possession of the obscene literature been voted before the trial on the other?
MR. KEARNS: No, after.
THE COURT: After.
MR. KEARNS: After.
THE COURT: Different courts?
MR. KEARNS: Different courts. This was the Court of Common Pleas, and the other was a misdemeanor so it was tried in the Police Court.
THE COURT: Well, was the obscene literature taken in the same search—
MR. KEARNS: Same search.
THE COURT: —as the policy materials?
MR. KEARNS: Yes, Your Honor; the same search, at the same time.
THE COURT: From the same trunk?
MR. KEARNS: Well, parts of the same trunk, we claim. The evidence, of course, was this: They claim, the police officers claim that they found some of this literature, a book or two, in the dresser drawer of her bedroom. They found some literature, they claimed, in the room.
We say that she had a roomer in the house, a man by the name of Jones. He had occupied that room. He had moved and left. And she had corroborating testimony to that effect. He had moved and left, and left some of his clothes and these things, including a .22 caliber revolver, in the room. And when she discovered that he wasn’t coming back within the week or two weeks, not knowing whether he was going to return or not, she started cleaning out the room in order to put his things away should he call for them or send for them, because his room was paid to the balance, to the end of the month. She wanted to clean the room out so that she could give the room to her daughter.
And the situation was that, while she was cleaning this room, she found these things, a couple of books and so on, together with some of his clothes, in the dresser drawer. Her testimony, and the testimony of her corroborating witness, was that they took these things out of the drawer. And these particular books, the obscene literature was in a brown envelope—a paper bag—and that when they took these things out they saw what it was, and she said to the girl that was helping her: Look at what terrible things men read. Let’s put it away.
So that they took these things and put it in a brown box—a small brown box—together with his socks and a hat and things of that sort, and put it in the basement.
But the police officers deny that they found these things in the basement. They said they found them all in the room. And, as a matter of fact, the evidence shows—and the record is here—that they even denied that there was a pistol there; then later the other police officer says: Yes, there was. So they didn’t agree on their testimony at all.
However, she did explain to them and Sergeant—Mr. Haney, who was the first witness, denied that she said that these things belonged to a roomer that formerly had had this room. Whereas Sergeant Delau—and the record so shows—testified that she did tell him that, and that she was keeping these things for the man when he came for his goods.
Then following that, of course, she was charged and she was tried before a jury. Now, the question came up in the trial of this cause, this being a comparatively new statute in Ohio—the statute in itself merely says: ‘‘Whoever knowingly has in his possession,” and goes on to say, “pornographic literature, even stories of crime, is guilty under this statute.” Now, the purpose, the reason for having it in the possession, as one of the judges of our own supreme court asked: What do you say, we have it here? And I said: You’re guilty. No question about it. Because the statute does not differentiate for any purpose of having anything in your possession, knowingly having in your possession. And the court charged the jury that under the statute she knew it was there, and knowing that it was there, she had it knowingly in her possession. Consequently, he practically charged that she was guilty. And his charge so showed.
THE COURT: Was this without reference to whether the possession was in the room or the cellar?
MR. KEARNS: Without reference. As long as she had it in her possession.
THE COURT: Even if in the cellar?
MR. KEARNS: Even if in the cellar, because she testified that they carried it down to the cellar. So, she had it in her possession.
THE COURT: Did the judge require the jury to distinguish, though, or to find that the goods were in the room?
MR. KEARNS: No, he didn’t.
THE COURT: He did not?
MR. KEARNS: He did not. He merely said that if, for any reason, even— He even went far enough to say that if a person has things like this in their possession and conceals them they’re still guilty, because if they find that these things were concealed because some of it was in a suitcase under the bed, together with some of the man’s clothing and socks and things of that sort that she had put away for him as she found them in the drawer.
THE COURT: Mr. Kearns.
MR. KEARNS: Yes, Your Honor.
THE COURT: May I trouble you to tell us what you deem to be the questions that are open before this Court? And I’ll tell you why I ask that question: Unless you correct me, I assume it is still the law of Ohio that the decision of your supreme court is what is contained in the syllabus. Is that still the law?
MR. KEARNS: The Rochin case, yes, sir.
THE COURT: Is that still the law of Ohio?
MR. KEARNS: Yes, sir; that’s still the law of Ohio.
THE COURT: Therefore, in going to the syllabi, I find that the court hasn’t decided questions of evidence or the charge, et cetera, et cetera. It decided only questions of the constitutionality of the statute.
MR. KEARNS: That’s what they decided. That’s what the—
THE COURT: So far as I read the syllabi, I can’t tell that any of these questions about search and seizure—no—
MR. KEARNS: Unlawful search and seizure.
THE COURT: Yes, but not the charge and not the adequacy of evidence.
MR. KEARNS: No, I don’t believe we are. All that we’re asking is that we have this Lindway that I’m setting forth in our brief that is controlling the entire State of Ohio.
THE COURT: And that holds that, although evidence is illegally procured, it is admissible; right?
MR. KEARNS: That’s right.
THE COURT: And that’s the familiar doctrine in so many states in this Union, and which we dealt with in the Wolf case. You don’t even refer to it in your brief.
MR. KEARNS: Well, we went through the Wolf case, but we don’t refer to it here. I think maybe the State got it. But the fact of the matter is that we are, as citizens of Ohio, deprived of our constitutional rights against unlawful search and seizure.
Now, may I go on with Judge Taft’s wording:
Defendant contends that the due process clause of the Fourteenth Amendment to the Constitution of the United States was violated by her conviction for possession and control of these books and pictures, since that conviction was based primarily upon their unlawful seizure from her during an unlawful search of her home.
There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant’s home. No warrant was offered in evidence, there was no testimony as to who issued any warrant or as to what any warrant contained, and the absence from evidence of any such warrant is not explained or otherwise accounted for in the record. There is nothing in the record tending to prove or from which an inference may be drawn, and no one has even suggested that any warrant that we may assume that there may have been described anything other than policy paraphernalia as things to be searched for.
Then we speak of our statute. Section 2933.24 requires a search warrant to particularly describe the things to be searched for. And 2905.35 of the Revised Code, our Constitution, Section 4 of Article I, specifically forbids the issuance of any such warrant except upon probable cause, supported by oath or affirmation particularly describing the place to be searched and things to be seized.
THE COURT: Mr. Kearns, does the State contend that there was a valid search warrant here?
MR. KEARNS: I don’t believe they do, Your Honor, although they speak of it, and they’ve spoken of it in the Court of Appeals and in the supreme court. But they don’t contend that there was.
THE COURT: In the Supreme Court of Ohio is there any basis, even in Judge Taft’s opinion or the others or the syllabi, that there was a valid search warrant?
MR. KEARNS: No, I just read you where he says that there is no valid search warrant.
THE COURT: I said the syllabi. The syllabi says:
A conviction thereunder [under this statute which you’re attacking] may be valid although that conviction is based primarily upon the introduction into evidence of lewd and lascivious books and pictures unlawfully seized during an unlawful search and seizure.
Do you have to argue anything when the court itself tells you it decided on the basis of an unlawful search? Is there anything to be argued about it?
MR. KEARNS: It certainly is.
THE COURT: I’m not saying, are they correct in sustaining it, but is the question that there was an unlawful search, is that in controversy in this case?
MR. KEARNS: No, it isn’t.
THE COURT: All right.
MR. KEARNS: There was an unlawful search.
THE COURT: Did you raise the question of no search warrant in the trial court?
MR. KEARNS: I did. I even filed a motion to suppress the evidence in the trial court, which motion was overruled.
THE COURT: What was the response of the prosecution to that?
MR. KEARNS: There is nothing in the record of any response, nothing. The record shows a motion to suppress the evidence was filed, was argued for the court, and the court overruled it. And I’ll say to this Court very honestly, that the court overruled that because of the Lindway case. It is the Lindway case that controls them, because time and again we’ve had the same question in our courts, in which the court would turn to me and say: Well, Mr. Kearns, can we say anything about this, since the Lindway case is still on the books?
THE COURT: And the Lindway case says, conceded that there was an unlawful search, the fruits of it may nevertheless, if relevant, be introduced into evidence in trials in your State. Is that it?
MR. KEARNS: That is right, and if they do not find contraband, then they are liable to a suit for being trespassers. That’s what the law of the case holds, as far as the case itself is concerned, because at that time—in 1935, I believe it was—there was this one man who was making bombs for the union. And so he was convicted, and rightfully so. And Judge Herbert in his dissenting opinion speaks of that situation.
But let us look at this other question: Here is a woman who is lawfully in her own home. She’s not exhibiting anything like this. She’s not trying to sell it. She’s not doing anything, assuming that they did find it in her home. The sentence, the sentence imposed upon her is one to seven years, for having exercising let us say—her right to look at a book that she shouldn’t look at, to have in her possession a book that she shouldn’t have. Not that she’s a criminal, not that she has a former record, but one to seven years imposed upon her for daring to have a book of this sort in her home.
THE COURT: What can we do about the length of the sentence, if you’re criticizing the length of the sentence?
MR. KEARNS: Well, constitutionally, haven’t her constitutional rights been violated?
THE COURT: On the length of the sentence?
MR. KEARNS: Yes, by the severity of it.
THE COURT: And you think that’s cruel and unusual punishment?
MR. KEARNS: Cruel and unusual punishment, yes. And we cite it in our brief with the constitutional provision. Isn’t it cruel and unusual, in a matter of this sort?
THE COURT: I may be wrong about it; you correct me on it. I thought that that phrase, “cruel and unusual,” related to the character and type of the punishment, and not the length of it. Am I wrong about that?
MR. KEARNS: Your Honor, the character and type, you’re right. But in this case the court had the right to give her a money fine under the same statute, had he seen fit to do so. Now, where we have a person who commits crime, where we have a person who’s a criminal and the record so shows, that’s one thing. But here we have an honest-to-goodness mother of an eleven year old child, living in her own home, not bothering anybody; and she is not given a fine under this statute. She is sentenced to seven years in the penitentiary for daring to have this in her possession.
THE COURT: I thought your real argument was that that conduct just couldn’t be a crime, and that therefore this statute’s an unconstitutional one.
MR. KEARNS: That is true. But I’m assuming for the sake and purpose of the discussion that the books were there and that this Court may feel that it was a crime. But we do say that this is not a crime under the factual situation in this case; that she did not intend to commit a crime; that she did not intend to injure any of the other citizenry of the State of Ohio.
THE COURT: Assume for the moment that she was constitutionally convicted, do you still contend that the punishment is cruel and inhuman?
MR. KEARNS: I do. I do, for the sake of this discussion, if she was constitutionally convicted. But I say, of course, that she was not constitutionally convicted.
THE COURT: I understand that.
MR. KEARNS: And, as I’ll explain, four judges of the seven found that she was not constitutionally convicted. But under our particular procedure the Court of Appeals affirmed the lower court, and where there is an affirmance, then we need six of the seven jurists to hold this unconstitutional, and we only had four of the seven. That’s the situation that we’re asking that this Court look into and correct the rights of this particular individual, this plaintiff—defendant-appellant.
I’m going to give Mr. Berkman, if the Court will permit me, to say a few words on behalf of the Civil Liberties Union.
MR. CHIEF JUSTICE WARREN: You may. Mr. Berkman?
ORAL ARGUMENT OF BERNARD A. BERKMAN, ESQ.,
ON BEHALF OF
THE AMERICAN CIVIL LIBERTIES UNION ET AL.,
AS AMICI CURIAE, URGING REVERSAL
MR. BERKMAN: Mr. Chief Justice, may it please the Court:
Before I get into the area which was allotted to me, I would like to say that the American Civil Liberties Union and its Ohio Affiliate, the Ohio Civil Liberties Union, is very clear, in response to the question which was directed to counsel for the appellant, that we are asking this Court to reconsider Wolf versus Colorado and to find that evidence which is unlawfully and illegally obtained should not be permitted into a state proceeding, and that its production is a violation of the Federal Constitution, the Fourth Amendment and the Fourteenth Amendment. We have no hesitancy about asking the Court to reconsider it because we think that it is a necessary part of due process.
THE COURT: Are you asking us to re-examine Wolf, or are you relying on Rochin against California?
MR. BERKMAN: We are asking the Court to re-examine Wolf. Our interest is not necessarily the same as that of the defendant who was convicted in this case, and our claim is more broad than that, Mr. Justice.
THE COURT: Do you think an argument could be made based on the existing decisions of this Court?
MR. BERKMAN: I think that an argument could be made. I think that there was certainly enough of a scuffle under the fact situation involved in this case.
THE COURT: The handcuffing of this—
MR. BERKMAN: The handcuffing, the scuffling about the physical person of the defendant, and so on. An argument might be made under the question of Rochin, but we, because of the peculiar position in which we stand before you, are not raising that technical argument.
Our principal reason for appearing on behalf of the American Civil Liberties Union and its Ohio affiliate is to urge the unconstitutionality of the Ohio obscenity law, which is Section 2905, Subsection 34 of the Ohio Revised Code.
THE COURT: I notice that statute also makes it a criminal offense, punishable presumably by seven years imprisonment, to have possession of anything intended to prevent conception.
MR. BERKMAN: We understand that, and in a case in which the facts were such that that could properly be raised we would be here, with the leave of Court, arguing that point as clearly as the question of obscenity which is now before us.
THE COURT: This is a fairly new statute, isn’t it?
MR. BERKMAN: Yes, it is a fairly new statute. The statute which immediately preceded it, as I understand it, did include possession, the words “possession for some criminal purpose.”
THE COURT: Yes.
MR. BERKMAN: Unfortunately, that statute apparently is no longer with us. It seems to us to be one of the principal constitutional defects of the statute.
THE COURT: When was the statute enacted?
MR. BERKMAN: I believe it was in 1955, Your Honor.
THE COURT: Have there been other prosecutions under it?
MR. BERKMAN: I beg your pardon?
THE COURT: Have there been, to your knowledge, other prosecutions under it?
MR. BERKMAN: Yes, there have. I think that the principal one upon which the prosecution in this case relies is the State of Ohio versus Collins. That was a Common Plea decision, a trial court decision, which was carried no further than the trial court opinion because of the fact that the jury found that the defendant was not guilty, so there was no reason to proceed. There may have been others, but the prosecution doesn’t rely on them and I don’t know of them.
THE COURT: Does your brief give us a legislative history, if there be any, for this?
MR. BERKMAN: I beg your pardon?
THE COURT: Does your brief give any legislative history? This is recent, 1955; there ought to be some background to this.
MR. BERKMAN: Well, the only legislative history about which we know appears in the brief of the representative of the defendant in this case. We did not consider that point.
This lady was convicted under this statute and given an indeterminate sentence of not less than one nor more than seven years. She was convicted under this statute despite the fact that a majority of the members of the highest court of our State, the Ohio Supreme Court, felt that the statute itself was unconstitutional the reason for this, of course, is the fact that Article I, Section 2, of the Ohio Constitution holds that where there has been an affirmance, a denial of unconstitutionality in a criminal case, in the Court of Appeals, it takes all but one of the justices of the supreme court to hold a statute unconstitutional and therefore void a conviction thereunder.
We are not at this point disputing that statute. We feel that it might be a matter to be disputed. But our interest is confined -
THE COURT: It’s a constitutional provision, not a statute.
MR. BERKMAN: I’m sorry, the constitutional provision but we are not now arguing about that. All we know is that at least four—
THE COURT: This was a great—it was hailed in 1912 as a great, forward-looking, liberal measure against judicial usurpation.
MR. BERKMAN: We understand that at that time some social legislation was under consideration, and, as happens many times, situations come back to haunt us.
THE COURT: Herbert Bigelow was the father of it, and he was a great, enlightened reformer.
MR. BERKMAN: We think—
THE COURT: He was the only one to propose that at the time.
MR. BERKMAN: As I say, we are not now contesting that constitutional provision. We think that in this case it has resulted in an injustice, and we think that this Court—
THE COURT: But in some other case it might help?
MR. BERKMAN: Those facts are not before us, Your Honor. The statute under which the defendant in this case was convicted, as far as we are concerned, reads like this:
No person shall knowingly *** have in his
possession or under his control an obscene,
lewd or lascivious book *** print, picture ***.
There are some words left out, but this is the heart of the particular statute. In short, as we understand it, if a normal adult knowingly has an obscene book or picture in his possession, without any criminal intent whatsoever, he has committed a felony in Ohio.
Now, as far as the facts are concerned, the only facts which are pertinent to our argument are that she was indicted and convicted under this statute. She was not charged with any criminal intent; she was not charged with distributing this material to minors; she was not charged with commercial traffic. She was charged only with knowing possession of lewd, lascivious, or obscene books or prints.
THE COURT: Is there any issue in this case as to if the books were obscene?
MR. BERKMAN: I think not. I think that by any definition which this Court would choose to apply the material was obscene, and for our purposes we are assuming that to be the fact.
We deplore the appellant’s bad taste in the selection of her literature, and we are not now arguing in favor of pornographic literature for the population. But this aesthetic issue, we submit, is not presently before the Court. As we see it, the central issue in considering the validity of this statute is this: Is this an area in which the individual has the right to be let alone, to be free of governmental restraint?
Mr. Justice Brandeis, dissenting in 0lmstead v. United States, stated it better than I could. It is cited at page 16 of our brief amicus. He said this:
The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.
More specifically, however, the issue is: Does this statute constitute an invalid exercise of the State’s police power so as to violate the Due Process Clause of the Fourteenth Amendment to the Federal Constitution? Now, we do not deny that a state may properly legislate in the area of morals. Nor do we argue at this time—although well at an earlier time we might have, after the decision in Roth versus the United States—that obscene utterances, the obscene word, the printed word, are within the protection of the First and Fourteenth Amendments as they relate to free speech and the press. In passing and in candor, the American Civil Liberties Union adheres to the proposition that all forms of expression may be limited only by the application of the tests arising under the First and Fourteenth Amendments, the test of clear and present danger, or, as modified in Dennis, clear and proper danger.
THE COURT: Are you asking us to reconsider Roth?
MR. BERKMAN: We are asking you to reconsider Roth, in addition to the other—
THE COURT: You’re asking a lot today.
MR. BERKMAN: Not representing individual defendants, we have considerably more freedom.
THE COURT: May I suggest that you do represent a defendant? You haven’t been authorized to make an oral argument on behalf of the American Civil Liberties Union. You’re sharing the time of the appellant, and therefore you’re speaking on his behalf and not generally.
MR. BERKMAN: We understand that, Mr. Justice Frankfurter.
THE COURT: But you just said that you’re not—
MR. BERKMAN: Consequently, we would like to direct our attention to the argument which we feel is directly related to—
THE COURT: I think you can make any argument on behalf of defendant, but you can’t say you’re not restricted within the bounds within which he’s restricted.
MR. BERKMAN: Well, Mr. Justice Frankfurter, there are several branches to our request to this Court: Number one, we think that, as far as all forms of expression are concerned, they should be protected by the First and Fourteenth Amendments. We think the Roth case—
THE COURT: My objection is not to your making any argument that’s relevant. You were given leave to file a brief.
MR. BERKMAN: Yes, Your Honor.
THE COURT: You were not given leave to make an oral argument on behalf of the American Civil Liberties Union. You’re sharing the time of the appellant, on behalf of the appellant.
MR. BERKMAN: Yes, Your Honor.
Our other branch of our argument is that we feel that, even in the area of morals, which we have conceded is a proper legislative area, that, as in other permissible legislative areas, such enactments or statutes must be reasonably adapted to accomplish the legislative purpose and must not be arbitrary and excessive. Furthermore, they must not infringe upon paramount individual rights, particularly where a similar legislative result may be achieved by other less drastic means.
We submit that interposing a policeman between a normal adult and his library is not a proper means of accomplishing what might otherwise be a valid legislative purpose. We contend that the statute is arbitrary and excessive. We urge that there are important individual rights which are protected against encroachment by the states by the concept of ordered liberty embodied in the Fourteenth Amendment, and which are substantially and unnecessarily limited by this statute. And we say that the evil sought to be controlled here can be met by less drastic statutory means without limiting the liberties of the citizens of the State of Ohio. Consequently, we feel that the statute is unconstitutional.
Now, our brief has discussed some of the sociological and scientific studies at page 8. In Appendices A and B we have correlated some of the studies which have dealt with the question of whether obscene material results in depravity. We note that, at page 8, the conclusion seems to be that there is no positive study that so holds. We are not saying that this is a necessary consideration to the matter of the First Amendment, clear and present danger. That is not our point. But we are trying to demonstrate that this legislation is not reasonably related to, nor adapted to the accomplishment of any legitimate governmental purpose.
Why must the relationship be shown between the legislative means and the desired result more clearly in this kind of a case? It seems to us that it is because individual rights, such as the right of privacy, the right to read—which has been substantiated as part of the Fourteenth Amendment in Wolf versus Colorado and Butler versus Alichigan, both of which opinions were written for the Court by Mr. Justice Frankfurter.
And we do not feel it necessary to consider whether the Fourth Amendment is incorporated bodily into the Fourteenth Amendment. We think that certainly the right of privacy is a basic concept of freedom which appears there.
We think also that Smith versus California gives an indication of the direction in which this Court may go in this case, and that is that even though the First Amendment is not involved in a matter dealing with admittedly obscene material, we think that this statute certainly has a potentially inhibiting effect upon freedom of expression, even if the material itself is not constitutionally protected.
And we feel that the evil sought to be controlled here can be dealt with by means that don’t infringe upon individual freedom. We think that there are other ways of attacking the problem of obscenity without saying to a person: You cannot have in your possession a book which may or may not be obscene, which you do not know is obscene until you read it, and immediately after you have read it and have the necessary knowledge—whatever that may be, and that’s a question which is left for another day, too—as soon as you have the requisite knowledge, you are guilty of a felony. We think that this is certainly a broadly drawn statute which is not necessary to achieve this purpose.
We urge the Court to keep in mind its own admonition in Roth, in which you will recall Mr. Justice Brennan, speaking for the Court, said this:
The door barring Federal and state intrusion into this area cannot be left ajar. It must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.
In this case, Your Honors, the door cannot be left ajar. It must be kept tightly closed.
MR. CHIEF JUSTICE WARREN: Mrs. Mahon?
ORAL ARGUMENT OF GERTRUDE BAUER MAHON, ESQ.,ON BEHALF OF APPELLEE
MRS. MAHON: May it please the Court and Mr. Chief Justice:
At the outset I want to say this, that when this case was pending in the Supreme Court of Ohio, or just after its deposition, one of the State’s exhibits disappeared, one of the obscene books. And when the exhibits were returned to the Court of Common Pleas, there was just the cover of this one obscene book that came back, and we don’t know what happened to it. I’m only mentioning this because you may be wondering, if you examined the exhibits, why one of the books only has a cover and the rest of it is gone. What happened to it—
THE COURT: Isn’t it conceded that the material was obscene?
MRS. MAHON: That’s right, Your Honor. There was never any issue—
THE COURT: So it doesn’t make any difference.
MRS. MAHON: No, it wouldn’t, except that I did not introduce the cover as an exhibit.
THE COURT: Yes.
THE COURT: Has the Clerk been indicted?
MRS. MAHON: Well, that shows you the necessity for the provision in this statute against possession, knowing possession. I’m not referring to the Clerk now.
THE COURT: How do we know he didn’t read it?
MRS. MAHON: Well, frankly, the statute doesn’t prohibit reading an obscene book. It doesn’t prohibit looking at an obscene picture. The very terminology of the statute shows that the whole purpose of it is to prevent the circulation of obscenity.
THE COURT: But if he keeps it, as I understand it under your supreme court’s interpretation, after reading it, and it’s obscene, then the possession of it is criminal under the statute, isn’t it?
MRS. MAHON: Mr. Justice Brennan, if he has unlawful possession and knowing possession—
THE COURT: Where’s that either in the statute or in the supreme court opinion?
MRS. MAHON: In the charge, in the indictment that this woman was charged. Of course, it had to be an unlawful possession. In other words—
THE COURT: But possession is unlawful under the statute.
MRS. MAHON: I disagree, Your Honor.
THE COURT: Unlawful possession is circular reasoning.
MRS. MAHON: Well, there is a—
THE COURT: The statute makes possession unlawful; isn’t that correct?
MRS. MAHON: Well, there is a possession in the hands of the prosecution. For example, I’ve had those obscene books and pictures for the purposes of prosecution. The courts had them for exhibits. Now, there’s a distinction, certainly, under the law, between a lawful possession and an unlawful possession as prohibited by the statute.
THE COURT: Are you saying—I understood you to say a little while ago that these statutes were directed against circulation of obscene matter. Is that right?
MRS. MAHON: That’s right, Your Honor.
THE COURT: Is that what you said? Now, let me ask you what that means. Do you mean the statute has been construed restrictively to cover only situations of possession for purposes of circulation? Has your court so construed it?
MRS. MAHON: There has been no such construction. But a reading of terminology –
THE COURT: The construction has been exactly opposite. Your supreme court in this very case has contrued this as meaning that if you have possession, naked possession, with knowledge that it’s obscene, you’re guilty of a crime under the statute.
MRS. MAHON: That is right. But inherent in the element of possession is the opportunity for circulation, wouldn’t you say, Mr. Justice Brennan?
THE COURT: It’s not what I’m saying; it’s what your supreme court is saying.
MRS. MAHON: Well, that’s what I have in mind in connection with the additional provision in the Ohio statute which was made in 1955. Prior to that time, it prohibited possession, but possession for the purposes of exhibition or for the purposes of sale. It was limited to that. In 1955, the legislature included this provision to prohibit a knowing possession, the naked, knowing possession of obscene materials, without regard to the purpose.
THE COURT: Does that mean—let me see if I understand that.
Does that mean that any book on my shelves, on any of my shelves, which may be found to be obscene constitutes the possessor, who does nothing but have that on his shelf, a violator of that statute? Is that correct or incorrect?
MRS. MAHON: A knowing possession—under this statute—a knowing possession of obscenity is prohibited by this statute. I would say it extends to anybody who has—
THE COURT: On a bookshelf, merely as part of his library—he’s a bibliophile and he collects first editions, not for the contents, but because it’s a first edition. And any book on his shelves, on my shelves, which I know to be obscene in content, but a matter of great indifference to me because I’m interested in the fact that it was published in 1527—that makes me a violator of this statute? Is that correct?
MRS. MAHON: I would say so, Your Honor; any collector of obscenity would be—
THE COURT: Does the question of purpose—
MRS. MAHON: —would be violating this statute.
THE COURT: Well, Uncle Sam has one of the biggest collections, and I can tell you now where it is, but it’s outside of your jurisdiction.
THE COURT: But that is not what you said when you said the purpose of this, the aim of this statute, is to prevent circulation, dissemination. Now, having it on the shelf isn’t disseminating, quite the opposite. There are no more [Inaudible] people in the world than bibliophiles.
MRS. MAHON: Well, Your Honor, but you would have the opportunity, having possession of it, to circulate it, would you not?
THE COURT: What you’re saying is—
MRS. MAHON: You would have the opportunity to circulate the obscenity.
THE COURT: Well then, what you’re saying is that this statute— as your supreme court has indicated to anybody who reads it— your statute says that anybody who has in his library, under the circumstances I’ve indicated, a book concededly containing obscene matter violates your statute; and the justification for it is that people might be tempted to circulate it. That’s your justification.
MRS. MAHON: Well, that’s an element involved in possession, too. I mean—
THE COURT: You can arrest the disseminator, and the way to deal with it is not to have it on his shelf?
MRS. MAHON: That’s right, Your Honor.
THE COURT: All right, now I understand you.
THE COURT: There’s no charge, was there, here, that she attempted to disseminate it or intended to disseminate it or intended to circulate it?
MRS. MAHON: No, there was not. However, there is the dispute on this evidence. In view of the fact that Mr. Kearns gave you some evidence, one-sided in this case—the State’s evidence was in direct conflict with the evidence offered by the defendant. As to the locale of this material, to begin with, in the house: All of this obscene material was found in her bedroom, along with a gun and a tape recorder. And that’s in the record.
Now, the books, the obscene pictures—there was a hand-pencilled drawing of a very obscene nature—that was the State’s evidence, that the officers found all this in her bedroom. They came along and said: The officers didn’t find it in her bedroom, they found it in her basement. But there was a direct proof and—
THE COURT: Well, wouldn’t you say she was still guilty even if they had found it in the basement?
MRS. MAHON: I would say, sir, if she—honorable sir—if she had acknowledged possession. But the claim was that she didn’t have possession of that, that she had an involuntary, if you will, possession for someone else. She denied that she had possession of that for herself. That was the issue.
THE COURT: This man—isn’t it correct that the Supreme Court of Ohio—at least this is the way I read their opinion—held that, even if we accept her story as true, that she simply packed up his stuff, the former roomer, and put it down in the basement, even accepting that as true, that still there was a violation of the statute?
MRS. MAHON: Yes, I know, Your Honor.
THE COURT: Isn’t that what the court held?
MRS. MAHON: That’s what they held.
THE COURT: And that’s what we’re bound by here, that construction of your statute.
MRS. MAHON: Well, they held that in Syllabus 1, based upon the defense evidence alone, Your Honor. And I, of course, mentioned that in my brief, that I feel that the Syllabus 1 of the opinion of the Supreme Court of Ohio is subject to criticism on that score, because they based that on the defense evidence alone.
THE COURT: It may be, but we can’t do anything about that.
MRS. MAHON: Well, I know. But to me, I mean as a prosecutor, it was a jury question, in view of the conflict as to whether she had possession, as she was charged. She was charged in the indictment with possession and control. Now, if she had possession for someone else, she didn’t have control over that, did she, in the sense that she had the right to do with it as she would, if it belonged to somebody else.
THE COURT: Well, why wouldn’t she? That statute says if she had possession, she had possession, and if she didn’t burn it or throw it away or something, why wouldn’t she be guilty?
MRS. MAHON: The charge in the indictment didn’t charge her with possession as a bailee. It charged her with possession and control.
THE COURT: Do you think there’s any difference? Do you think a person can get off by saying: I’m holding all this obscene literature for somebody else, and therefore I’m not guilty under the act? Is that the court’s opinion here?
MRS. MAHON: No. I believe this, that if she had a defense that this material was not in her possession in the sense that it was packed away and belonged to someone else, was not available to her.
THE COURT: Oh, not available?
MRS. MAHON: Yes.
THE COURT: And she knew about it, she knew it was there in her house?
MRS. MAHON: In the basement.
THE COURT: She knew it was there, and that it was very obscene, and didn’t do anything.
MRS. MAHON: I don’t believe that the statute contemplates a conviction under those circumstances. Now that’s where, of course, I very humbly disagree with the Supreme Court of Ohio in Syllabus 1, because neither the charge contained in the indictment—under that charge, charging her personally with the possession and control, nor the charge of the court in instructing the jury on possession—he never instructed the jury that if they found, that even if they found that that material belonged to somebody else and was in the basement, that they could find her guilty. There was no such instruction by the court.
THE COURT: Do you think that under a statute that makes it a crime to have morphine or narcotics that a person could get out, on the basis that he was holding or in possession for somebody else?
MRS. MAHON: Depending upon the type of possession. Here is a possession in a—well, Your Honor, I see what you mean on that score, and there is no one that can doubt the correctness of the judgment of a legislature in prohibiting possession of narcotics, regardless of who they belong to. I recognize that ownership—
THE COURT: In Prohibition times, the possession of liquor; it didn’t make any difference who it belonged to.
MRS. MAHON: That is true. But I believe this, Your Honors, that if the jury had given credence to her evidence that we might well have found her not guilty. Certainly, they couldn’t give credence to both the State’s evidence and the defense, because it was in conflict.
THE COURT: Mrs. Mahon, are you under the impression that your argument starts with the problem that we are here to decide whether she had possession as a matter of title or if she had merely a bailee’s possession? Do you think that’s the question before us?
MRS. MAHON: No, whether the statute—
THE COURT: Do you think we’re concerned with that question?
MRS. MAHON: All right, Your Honor. The statute—I thought that you might be concerned with it from the standpoint that the argument is that whether she had possession for or on behalf of a roomer or—
THE COURT: What difference does it make under your statute? Or assume, assume that you have to have something which as a matter of law means legal possession, and your supreme court has found, has sustained the statute on the assumption that this defendant was found to have had legal possession, whatever legal possession may be in Ohio. But it doesn’t require anything beyond possession, does it?
MRS. MAHON: No.
THE COURT: Well then, that’s the basis from which one has to start in this case.
MRS. MAHON: All right, then.
THE COURT: It requires possession and knowledge.
MRS. MAHON: Possession and knowledge.
THE COURT: In other words, a checker down at the Union Station wouldn’t be guilty if these things were in a suitcase?
MRS. MAHON: No.
And scienter was proven in this case. There was never any dispute raised on that in the reviewing court that scienter was not established. So that the elements of the crime were established beyond a reasonable doubt.
Now, the constitutionality of this legislation—of course, we are relying upon your decision in the Roth case, in which a Federal statute providing that obscene, lewd, lascivious or indecent material is nonmailable—and in the Roth case, Mr. Justice Brennan made this statement:
Implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. And we hold that obscenity is not within the area of constitutionally protected speech or press.
We believe that this statute legislating the, regulating obscenity and the dissemination of it, or the circulation of it in Ohio, is a proper exercise of the police powers of the State. Recognizing that obscenity is an evil that has to be coped with—and, of course, that is not peculiar to the State of Ohio alone—we believe that—
THE COURT: Is there any other state, to your knowledge, Mrs. Mahon, that makes mere possession a criminal offense?
MRS. MAHON: Well, I haven’t run down the statutes, Your Honor. But this is true: that when this Court had the Winters case before it—
THE COURT: Winters against New York.
MRS. MAHON: In the Winters case you had a different—that was a similar statute to the Ohio statute, but I do not recall that it prohibited possession alone. And the portion of the statute that was under consideration had nothing to do with this particular provision. But I do remember, in reading the Winters case, that Mr. Justice Frankfurter in his dissent on that pointed out, among other statutes, a number of statutes of the states that might be struck down as a result of the decision in the Winters case, and he mentioned the Ohio statute. However, the portion that we have here—
THE COURT: This must have been before ‘55.
MRS. MAHON: Well, I say, the portion that we have here was not in the Ohio statute at that time.
However, getting back to the Roth case—which the other side, the defense, completely ignored on the issue they’ve raised here in connection with the constitutionality of this legislation—in the Roth case I want the Court to know this: that in the trial of this case, the trial judge in instructing the jury on the test to be used to determine whether this obscene—whether this material was obscene—used the definition that this Court laid down in the Roth case and told the jury that:
*** the proper test is whether, to the average person, applying contemporary community standards, the dominant theme of the material in question, when taken as a whole, appeals to the prurient interest.
That was the instruction of the court. He followed the definition that this Court laid down in the Roth case.
And, getting back to the constitutionality of legislation prohibiting scienter possession, in the supreme court’s opinion of course, in the dissent, I think Judge Herbert discusses the Smith case. And that case came to this Court from California, and I think it’s distinguishable on the elements required to be proven by our legislation. This Court, in reversing that case, pointed out that scienter was not required, and that under those circumstances a bookseller could not be held liable, could not be held to examine all the books that he had in his store in order to avoid a prosecution under that ordinance. But we do have the element of scienter in our State statute.
THE COURT: Do you see any constitutional difference between a statute making possession of narcotics a crime and a statute such as yours making obscene literature?
MRS. MAHON: Absolutely not.
THE COURT: You think they’re both the same?
MRS. MAHON: I think so, Mr. Justice, because of course, restricting the possession of narcotics comes within the police power of the state to serve public health.
THE COURT: Really, your constitutional argument, if I understand it correctly, from Roth, is that Roth says obscene literature is not protected, and therefore it’s just like contraband, and therefore the State can do anything they want with it.
MRS. MAHON: It is within the police power, yes. Yes, that is our position. There is a distinction, of course, in the Roth case. The Court was considering knowingly mailing obscene material. But what good does it do to legislate to prohibit the production of obscenity, the distribution of it, if ultimately possession is constitutionally protected—the user of it, just as the user of narcotics.
On the other issue, I think, that is before this Court, on this search and seizure, on the trial of this case the two officers that testified were already on the scene when this Lieutenant White came out there, ostensibly with a search warrant. The record doesn’t show, and we have admitted, and as the supreme court held, this was an unlawful search insofar as this particular evidence was concerned, at least. There was no search warrant to cover it.
But on the motion to suppress this evidence at the time of the trial, the court relied upon the Lindway case in overruling the motion to suppress. And, of course, the constitutional provision against an unreasonable search and seizure, this Court has held in the Wolf case, does not prevent a state from offering into evidence, it doesn’t affect the competency of evidence tending to establish the commission of a crime.
Now, we’re relying on the Wolf case, too, with this Court. And if this is a settled proposition insofar as the states are—rules of evidence are concerned. It really is a judicial rule of evidence, and Ohio does not follow the exclusionary rule. And this Court has held that the state has a right to, and it is not in violation of the Fourteenth Amendment to so admit evidence, even though obtained without a search warrant.
I have never been able to reconcile—that is, not reconcile; but it seems to me that the provision in the Constitution against an unreasonable search and seizure and the competency of evidence establishing the commission of a crime are not directly related in this respect: that the absence of a search warrant can be no defense to a crime. If the evidence establishes a crime, what defense is there in the absence of a search warrant? It’s a collateral matter. It provides for a civil suit for trespass if that constitutional right is violated. Police officers are amenable to—as held in the Lindway case, and I’m reading from the Lindway case right now:
An officer of the law who makes a search and seizure in a dwelling or other premises without a warrant or with an illegal warrant in contravention of Section 14, Article I, of the Constitution of Ohio is a trespasser and amenable to an action for such trespass.
There are many constitutional and statutory safeguards provided for in the Ohio Constitution and the Ohio statutes to ensure that persons accused of crimes shall have a fair and impartial trial, and those safeguards apply to matters of form as well as substance. But neither the laws of Ohio nor the Ohio courts are solicitous to a person accused of crime in concealing the evidence of their guilt; and under Ohio laws many presumptions are indulged in favor of accused persons, and a strong measure of proof is required as to every material fact necessary to establish the guilt of the accused. But such indulgence does not reach to the extent of rejecting competent evidence because of the method by which it was procured.
And so, in the Ohio Constitution and under the Ohio laws, the fact that there was a search warrant would not make the evidence any the more competent or the fact that there was no search warrant would not make it any the less competent. It has no bearing whatsoever on the evidence itself proving the corpus delicti of the crime.
This brief amicus curiae, Your Honors, raises an issue that was not brought up in the Court of Appeals or in the trial court, and I don’t believe that the issue should be enlarged upon by the time they reach this Court, because the Court of Appeals, for example, had no opportunity to pass upon a comparison of the statutes, this 2905.34. In the brief amicus curiae they talk about 2905.37 and 3767.01, and try to draw a comparison trying to show that there’s a denial of the equal protection of the laws by reason of the exemptions in those other statutes. But the lower courts had no opportunity to consider those statutes along with 2905.34. There was never any issue raised in this case by this defense until we got to the Supreme Court of Ohio and agreed to a brief amicus curiae being filed. The defense never claimed that there was a denial of the equal protection of the laws in the Court of Appeals on 2905.34.
Indeed, it makes no exceptions, that statute alone. No one is exempt. But in these other statutes they talk about—2905.37, for example, that’s so that druggists in their legitimate business shall not be affected by 2905.34. But it says “in their legitimate business,” and I don’t think that under 2905.34 that a druggist, even a druggist, could violate that provision and unlawfully have in his—knowingly have in his possession in the drugstore obscene material.
But this is what the brief amicus curiae raises. And they talk about the right of a person to read being violated under the Constitution. Well, under your Roth case you held that the Constitution doesn’t protect obscenity in any respect. The right to read—and they said the right of privacy, and that’s getting back to having books in your private library. If under the Roth case the Constitution doesn’t protect the collection of obscenity, then I say that you can’t have them in your private library either, or that there’s no constitutional guarantee that that can be done.
THE COURT: Have you made an examination of the library of the State University of Ohio or Western Reserve or Wooster, or—scores, you’ve got scores of colleges, I suppose, that are esteemed. I haven’t been told, but my guess is, probably more than any other State in the Union. Would the various prosecutors—certainly, they’ve got possession of the books in their library, wouldn’t you think so, in any view of possession?
MRS. MAHON: I would not agree, Mr. Justice Frankfurter, that any of those libraries contain any type of book such as the exhibits are in this case.
THE COURT: I haven’t seen these exhibits. You think I have to. But I’m sure that all those libraries, or most of them, have books that in their contents would be condemned if a seller, under obscenity statutes, was selling obscene books. I can’t believe that the University of Ohio or the University of Cincinnati hasn’t books that I shan’t mention in here lest there be people who [Inaudible]. But I’m sure they have them in those institutions. They’re institutions of learning.
MRS. MAHON: Yes, Your Honor.
THE COURT: Pornography itself is a subject for learning, a very important subject.
MRS. MAHON: I would find it difficult to believe, without even examining those university libraries, that those libraries would contain what has been passed upon by a jury in this case as obscene material. And if that were so, if any one of those libraries contained the obscene books and pictures and the hand-pencilled drawings that are to be found as exhibits in this case, then somebody should be arrested.
THE COURT: But psychiatrists have studied these things as to why human people are so perverted—I take your indication of what these things are—that human beings are so perverted that they bother with these things, manufacture them, like them, print them, sell them, read them. Psychiatrists have a lot of business of this sort, I can assure you, Mrs. Mahon.
MRS. MAHON: Well, I’ve often—I won’t say it, Your Honor.
THE COURT: Probably wise, probably wise.
MRS. MAHON: Probably wise.
THE COURT: Maybe it might be wiser not to discuss the university libraries much further, for the benefit of the university libraries.
MRS. MAHON: That is true.
Well, of course, I’m trying to stick to the past in this case, Your Honor. I’m not covering the whole field of—
THE COURT: But we’re examining a statute of general application.
MRS. MAHON: It doesn’t exempt a psychiatrist. It says “whoever has.” There is no exemption in it, so that—
THE COURT: There are some important medical faculties in Ohio, and therefore important psychiatric branches of medicine.
THE COURT: Is the petitioner a psychiatrist?
MRS. MAHON: Who?
THE COURT: Petitioner, what is her calling? Is she a teacher or—what is her—
MRS. MAHON: Oh, no. I don’t know what is her—
THE COURT: We have your assurance that psychiatrists are not exempted from this statute?
MRS. MAHON: Well, as a prosecutor, if we had one charged with unlawfully and knowingly having this in his possession - and, of course, the element—
THE COURT: You don’t say that you would prosecute him, though.
THE COURT: I think only a short time ago there was a proceeding at the Port of New York to prevent one of the great Middle West universities from getting the background, the source material, of the Kinsey Reports. And they were obviously obscene, much of it. And I think the Government finally admitted all of it to the university for scientific purposes.
MRS. MAHON: For scientific purposes.
THE COURT: Yes. But now, I’m just wondering, if that were the University of Ohio, the State University of Ohio—it wasn’t, as I recall it—but if it had been, would those people have been guilty of violating this law?
MRS. MAHON: I believe, Mr. Justice, that the law is directed against a scienter possession. By your very definition in the Roth case, a scienter possession for this purpose—well, I guess the Roth case, again—you have a—and I say under the law there is a difference between a lawful and an unlawful possession.
THE COURT: Well, the only question I’d be interested in having you answer is the one that Mr. Justice Frankfurter asked you earlier in your argument: If there is anything in this statute or in the interpretation that your supreme court has made of that statute which differentiates, let us say, between possession of these materials by a housewife on the one hand, and by, let us say, the university of some state on the other hand, for scientific purposes.
MRS. MAHON: Yes. Well, of course the statute doesn’t make any such distinctions, I mean the language of it.
THE COURT: Yes, but does the interpretation of your court make any such distinction?
MRS. MAHON: Well, so far we haven’t had a decision on anybody from a university charged with unlawful possession of obscene material. I think that would be a question coming up. I don’t think that the law would sustain a prosecution, going into a university—well, who would you charge with possession if it were in the library, to begin with? An unlawful possession, a personal possession, a scienter possession?
THE COURT: I thought you said a few moments ago that if they had possession and it was obscene, then they could be prosecuted. You tell me now they’ve not been doing their duty.
MRS. MAHON: The individual who would have scienter possession. I don’t know who you would charge.
THE COURT: You couldn’t draw any distinction under this statute between a university librarian and anybody else, could you? As far as you’re concerned as a prosecutor; am I wrong?
MRS. MAHON: I think it’s the possession for circulation.
THE COURT: But she’s not charged with that.
MRS. MAHON: No, but the possession with the opportunity for circulation.
THE COURT: That’ll cover the library, because that’s what the library’s for; it’s a circulating library.
MRS. MAHON: That’s the reason for it.
THE COURT: Not only that, but libraries sell books by way of exchanges.
MRS. MAHON: That are obscene?
THE COURT: Well, all sorts.
MRS. MAHON: The only cases, Your Honors—perhaps I should say that I didn’t cover the field in this issue, beyond what my experience has given me as a prosecutor in prosecutions brought under this statute—we’ve had a number of them, where individuals are found in possession of obscene material on their person. They’re perhaps in a car, a defendant in a car; the police are searching him for something else and they come upon a lot of obscene material. That person is charged under this statute.
Now, my experience on it has been with the cases of the type where they’re walking around with the material and have an opportunity to disseminate the contents of it. I had cases where the officers come upon it in searching an individual who may be quite anonymous, as in their automobile. Now, insofar as having a case against the head of a university, I haven’t. Now, I don’t know the answer to that. I think it would have to be something on the part of the individual that would bring him under this statute, rather than scienter possession. Because a knowing possession of this obscenity implies a prurient interest, to use the language of this Supreme Court in the Roth case.
THE COURT: Did your supreme court hold that, though, in this case?
MRS. MAHON: No, that doesn’t appear. But our trial court instructed the jury—
THE COURT: Doesn’t it appear to the contrary, that whether this had been in her bedroom or whether it was down there in the basement, as she said, if she knew it was there it was still a violation of the law?
MRS. MAHON: Oh, no, not if she knew it was there, Mr. Justice. The evidence established that she had scienter. She had knowledge of the obscenity of the contents of it.
THE COURT: Yes, that’s right.
MRS. MAHON: Not that she knew the book and pictures were there; that scienter element.
THE COURT: Yes, she had possession of them, knowing what was in them. But as I understood it, your supreme court held that whether her story was true or not that she had taken them out of a room of one of her roomers and had stored them down there in the basement, if she had them with knowledge of the contents, that she was as guilty as if they had been in her bedroom door.
MRS. MAHON: That is so. I, of course, disagree with her. I think, because it’s based on the defense evidence alone, some of us might.
THE COURT: You’re not in a very good position to disagree with the interpretation that your supreme court puts on your Act, are you?
MRS. MAHON: No.
THE COURT: Not in this Court, anyway.
MRS. MAHON: No. However, having tried the case, and knowing that it was a question on the weight of the evidence as to who was telling the truth to begin with, the State, the police, or the defendant, because there was a conflict—maybe that’s why I get the impression that I feel that the syllabus is a one-sided thing; and it was a jury question to begin with. Nobody can say that the jury believed her story. Wasn’t that a jury question to begin with, that they believed her story?
THE COURT: Your statute does seem to contain some exceptions, if I read it correctly. Section 2905 exempts from the provisions that are involved here: “. . . teaching and regularly chartered medical colleges, publication of standard medical books, regular practitioners of medicine for the purpose of legitimate business.” They don’t affect the distribution of bona fide works of art.
MRS. MAHON: That’s in a separate section.
THE COURT: Well, it applies. I’d understood you to say up to now that there were no exceptions, that the charge was obscenity in and of itself.
MRS. MAHON: No, I said that 2905.34 contains no exceptions.
THE COURT: But you have to read that section together with—
MRS. MAHON: With the others, yes.
THE COURT: —with some other sections that bear different numbers.
MRS. MAHON: Yes, those are the two: 2905, exempting druggists and exempting—
THE COURT: Bona fide art associations, whatever that is.
MRS. MAHON: Of course, there wasn’t any question raised in connection with those other statutes, as I said to you, in the Court of Appeals, any issue raised. That was brought up in the brief amicus curiae on a denial of equal protection of the laws, because there are exceptions in those other statutes.
THE COURT: They do not apply to this statute?
MRS. MAHON: They mentioned 2905.34, yes.
THE COURT: You think all the exceptions apply to each statute?
MRS. MAHON: No, the one that he is reading from—
THE COURT: Does that apply to the statute under which this lady was convicted?
MRS. MAHON: That is true, Mr. Justice. There are exceptions in that other statute exempting—
THE COURT: Well, this is 29—the one you’ve got here—is 2905.34, isn’t it? This exception that I’m reading says 2905.33, which is the one before 34, to 2905.36 don’t apply, in these categories of things that I’ve been reading.
MRS. MAHON: Yes.
THE COURT: Is that right?
MRS. MAHON: That is true.
THE COURT: Well, I don’t understand your other argument. Do you understand that the exceptions there apply to the statute which isn’t here, or do they apply also to this statute under which this lady was convicted?
MRS. MAHON: The exceptions in the other statute are really exemptions, in this respect—now, if I can get this clear. You see, I didn’t have this issue in the lower courts at all. It’s coming up here—there is a statute that exempts teachers and druggists in their legitimate business. I’m trying to find the number here.
THE COURT: 2905.37.
MRS. MAHON: It’s 37, 2905.37—I do not have the wording of 2905.37.
THE COURT: I think it appears on page 34 of the appellant’s brief, 2905.37. Page 34.
MRS. MAHON: Well, 2905.37 reads that:
Sections 2905.33 to 2905.36 (which, of course, would include 2905.34)... do not affect teaching in regularly chartered medical colleges, the publication of standard medical books, or regular practitioners of medicine or druggists in their legitimate business, nor do they affect the publication and distribution of bona fide works of art.
Well now, that is a reasonable classification, in the sense that 2905.34, so long as 2905.34 is not contravened—for example, it says a druggist in his legitimate business. Now, nobody could hold or argue that it is the legitimate business of a druggist to knowingly possess obscene materials.
THE COURT: I suppose that exemption is directed toward the art of the other statute that makes anything for the prevention of conception, the possession of anything for the prevention of conception, a criminal offense.
MRS. MAHON: I suppose, Your Honor. There are other provisions in 2905.34 with which this case isn’t concerned. We have one portion of the statute under which he was charged, and it’s quite a lengthy statute to begin with, and it covers various other matters. However, I still say that this 2905.37 would not exempt a druggist from 2905.34 if he knowingly had in his possession obscene materials.
THE COURT: Well, would it have exempted this lady if she—if what she had was a bona fide work of art made, published, and distributed by a bona fide association of artists, or an association for the advancement of art?
MRS. MAHON: No, it would not, Your Honor, because the very end of that statute says “whose demonstrated purpose does not contravene Sections 2905.06 through 2905.34.” That’s the qualification, there. Even if she belonged to a bona fide association of artists.
THE COURT: I don’t know what those other sections define.
MRS. MAHON: Even if she belonged to the—if it was for the advancement of art—it cannot be held to contravene—I mean, there’s no exemption if it contravenes 2905.34.
There were several other issues in this case, such as that the sentence of the court, that the sentence is unconstitutional. Under the laws of Ohio, a sentence is not for a definite term, and in the opinion of the Supreme Court of Ohio the statute controlling is mentioned. For example, a statute may call for a penalty of one to seven years. Grand larceny calls for that. The court doesn’t sentence the defendant for one year or for two years or for seven years. And they’ve been arguing all the way up through the courts of Ohio that this defendant has been sentenced for seven years, which is not a fact. The court merely sentences for an indefinite term. In other words, they sentence to the Ohio State Penitentiary, sentence to the Ohio State Reformatory, or: I sentence you to the Ohio State Reformatory for Women, in this case, which means this; that the statute provides for a minimum of one and a maximum of seven. But after serving the minimum the defendant can come up for consideration for parole, and in fact may get out before the—
THE COURT: Is she out now?
MRS. MAHON: She has never served time; she’s been out on bail.
THE COURT: Out on bail?
MRS. MAHON: Hmmmm [Positive noise].
In other words, on a sentence to the Ohio State Reformatory for Women in this case, the defendant’s time could be one year less a month; in other words, she’s put in eleven months. That all rests with the Ohio Pardon and Parole Commission, under the laws of Ohio, as to how long a defendant will put in time. That is, except in first degree murders. So that there’s nothing cruel and unusual about the punishment in this case. There’s a minimum of a year and a maximum of seven.
THE COURT: But in your State—is your State like other states, some other states, where they have an indeterminate sentence law that when they are sentenced they are sentenced for the maximum until the parole board—
MRS. MAHON: Oh, no.
THE COURT: —reduces it to a shorter term?
MRS. MAHON: Oh, no, Mr. Justice. Mr. Chief Justice, under the entry of the court, all it says is: Defendant is sentenced to the Ohio State Penitentiary. With the rules and regulations of the Ohio Pardon and Parole Commission, that defendant can come up for consideration upon the expiration of the minimum.
THE COURT: Yes, I understand that.
MRS. MAHON: There’s no maximum sentence.
THE COURT: No, I understand that. But I’ve operated under an indeterminate sentence law, too, for many years. But in my State when they go for the indeterminate sentence under the indeterminate sentence law, the sentence is for the maximum until they do have that hearing and fix it at a lower number of years.
MRS. MAHON: The sentence includes that?
THE COURT: No, there’s nothing said about it. But that is the statutory interpretation of it. I don’t know that it makes a great deal of difference. But I was just wondering.
MRS. MAHON: Well, of course, it’s been my impression that they go to—for example, on the one to seven, or one to ten—for example, we have an armed robbery; the penalty on armed robbery is ten to twenty-five years. Now, under the rules and regulations of the Ohio Pardon and Parole Commission, and depending upon the institution to which the defendant goes—for example, the Ohio State Reformatory takes offenders up to thirty, and the penitentiary beyond that. But if the man went to the penitentiary on an armed robbery conviction on a ten to twenty-five, he would put in a minimum of about six and a half years on that ten to twenty-five before he could come up. But at the reformatory, the same person would put in two and a half years on a ten to twenty-five before he’s considered.
However, there isn’t any showing that this punishment provided by this statute is cruel and unusual. It’s not an unusual—in fact, it provided for a fine or imprisonment, or both. Now, the court could have fined her in addition to the imprisonment sentence. And they have been claiming in the supreme court and in this Court that this woman’s sentence, that the Court of Appeals refused to review it. And that isn’t a fact at all. If you’ll look at the journal entry of the court, the Court of Appeals journal entry, you’ll find that they said: “Upon review of the entire case”—and this was one of the issues, that her sentence was cruel and unusual—if you look at the journal entry, they hold that punishment was within the exclusive jurisdiction of the trial court. In other words, that the court, the trial court, had the discretion whether to give her imprisonment or just a fine or both. So there was nothing cruel and unusual in sentencing her. And that really was the—is to be concluded from the journal entry of the court, because they said they reviewed the entire case. They didn’t refuse to review the question of her sentence at all.
Your Honors, we believe, the State of Ohio, that we have a right to rely on your decision in the Wolf case and on your decision in the Roth case, if there is anything to the doctrine of stare decisis; and that we also; the trial court had a right to rely on the Lindway decision in handling this matter in the trial court, because the Lindway decision is in line with your decision in the Wolf case. And we respectfully submit that there has been no violation of any constitutional right of the defendant in this case on the trial, by reason of there having been no proper search warrant. We feel that that constitutional provision does not cancel out evidence of a criminal offense, or does not constitute a defense to the commission of a crime, whether the evidence is found upon the person or found in the privacy of a home. And I don’t think that if this obscene material was found upon her in the street and in her possession and there had been no search warrant, that there would have been any difference in the case. In other words, if she had been searched on the street and all this obscene material was found, the constitutional provision against unreasonable search and seizure also goes to the person as well as the home; and the fact that it was found in her home without a search warrant or a proper one—and on that issue, I want to correct something that I just remember Mr. Kearns told you, that the prosecutor promised on the trial of this case that she’d produce a search warrant. That isn’t so at all, and it’s not even in the record. He had as much right, if he doubted that there was any—what this Lieutenant White had, he had as much right to bring Lieutenant White in on subpoena as the State. And it wasn’t incumbent on the State to offer any search warrant as an exhibit, as an element of the crime to be proven. And that is why, on the authority—in fact, in view of the Lindway decision, that’s why the court overruled the motion to suppress the evidence.
THE COURT: Is the search warrant in existence?
MRS. MAHON: Insofar as the record is concerned, it doesn’t show any.
THE COURT: Is there any record of it in the records as to whether—
MRS. MAHON: There’s no record that there was a search warrant. The two officers who testified, who were the only ones, Mr. Chief Justice, you find in the record who made this particular search and found this evidence—they talk about twelve police officers being there and surrounding the place and making the search. But the only officers who turned up with this evidence were Sergeant Delau and the patrolman who testified in this case. They had nothing to do with obtaining a search warrant. When the defendant requested, told them to get one, the officers said they waited and that Lieutenant White came out there. They thought he had a search warrant. Now, that’s what the record shows.
MR. CHIEF JUSTICE WARREN: All right, thank you.
MR. KEARNS: Do I have—
MR. CHIEF JUSTICE WARREN: Yes, you have some time left, I think, Mr. Kearns.
REBUTTAL ARGUMENT OF A. L. KEARNS, ESQ., ON BEHALF OF APPELLANT
MR. KEARNS: Thank you, Your Honor.
To answer the question that was asked pertaining to our supreme court’s ruling, on page 13 of our brief, our supreme court has held:
Under our statute as now worded, mere possession is forbidden even where the possessor does not have a purpose of again looking at the books or pictures; and, in the instant case, the jury could have found the defendant guilty and she could have been, as she was, sentenced as a felon, even though it believed her evidence that she had innocently acquired possession of these articles, had no intention of ever looking at them again and was merely keeping them pending instructions for their disposition from their owner.
Then they cite cases from this Court.
Now, the charge of the court to the jury, that portion of found on page 65 of our record:
Number three: That the defendant had in her possession and under her control the books, pictures and photographs mentioned in the indictment. ‘Possession’ means the act or state of detaining a thing; it is the act of holding or keeping it. Now, such detention does not mean that it is necessary always to have in ones s sight the thing possessed. For example, one who deposits articles in a place of concealment may still be deemed to have them in his possession. To have something under one’s control is to have the present right and power to do with it as one will.
So that the court actually told the jury that under language of this statute the defendant in this cause was guilty.
Now, a question arises as to what should she have done these things after she discovered that they were improper things to have in her possession. Now, our statute, Section 2909.01,reads as follows—
MR. CHIEF JUSTICE WARREN: We’ll recess now, Mr. Kearns.
[Whereupon, the Court was recessed, to reconvene later same day.]
MR. CHIEF JUSTICE WARREN: Mr. Kearns, you may continue your argument.
MR. KEARNS: Thank you, Your Honor.
REBUTTAL ARGUMENT OF A. L. KEARNS, ESQ., ON BEHALF OF APPELLANT—Resumed
MR. KEARNS: The question arose as to what this defendant-appellant could have done with these materials after she found them. Now, we have Section 2909.01 of the Ohio statutes, which reads as follows:
No person shall maliciously destroy or injure property not his own.
Whoever violates this section shall be imprisoned not less than one or more than seven years if the value of the property destroyed, or [to which] injury is done, is One Hundred Dollars or more ***
THE COURT: I suppose she could have called the attention of the police to it, couldn’t she?
MR. KEARNS: Well, if she called it to the attention of the police, she would still be in possession under this statute.
THE COURT: Well, I guess so.
MR. KEARNS: And if the police were of the type that they were, and doing the things that they did and they usually do in Cuyahoga County, using their badges as supreme authority, they would have done the same thing, by prosecuting her.
I want to just say a word or two in the language of our judges. Now:
In the opinion of Judges Taft, Bell, Herbert, and Peck, the portion of Section 2905.34, Revised Code, upon which defendant’s conviction was based (now, this is the majority opinion) is constitutionally invalid, and, for that reason, the judgment of the Court of Appeals should be reversed. However, Section 2 of Article IV of the Constitution of Ohio reads in part:
No law shall be held unconstitutional and void by the supreme court without the concurrence of at least all but one of the judges, except in the affirmance of the judgment of the Court of Appeals declaring the law unconstitutional and void.
Now, I just want to say a word about the—reading second opinion of our Judge Herbert of the supreme he said:
Although I concur in paragraphs one and three of the syllabus, I must except from paragraph two, which follows State versus Lindway, 131 Ohio State, [page] 166, ... and the judgment. The facts are sufficiently stated in the majority opinion.
Section 14, Article I of the Ohio Constitution, provides:
The right of the people to be secure in their persons, houses, papers, and possession, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized.
The judgment in the Lindway case is not in conflict with this constitutional provision. Had I been a member of this court at that time I would have joined in the judgment as all the members of the court then did because the evidence there clearly established that the defendant was operating a bomb manufacturing shop in the basement of that house. As stated by [Judge] Jones, . . . in the concurring opinion in that case—
THE COURT: May I ask you what relevance that has to your point?
MR. KEARNS: The relevance that it has to our point-
THE COURT: The State constitutional provisions?
MR. KEARNS: The State constitutional provision, as well as the Federal constitutional provision—
THE COURT: You were reading from, I thought, the State -
MR. KEARNS: I was reading from the State constitution provision—
THE COURT: Pardon me, I’m sorry.
MR. KEARNS: —but it’s practically a copy of our own Federal constitutional provision, which is the same, that the people be secure in their homes against unlawful search and seizure.
THE COURT: Yes, but you were reading what the supreme court held with reference to its own State constitutional provision.
MR. KEARNS: Not that they held. This is the dissenting opinion, Your Honor. Judge Herbert, reading the State constitutional provision, which is identical with the Federal constitutional provision as to unlawful search and seizure.
But I just want to show this Court—
THE COURT: That doesn’t reach the question that you were asked about several times, and that is: Assume what is asserted, that it would be illegal under the Federal Constitution, what do you do with the Wolf case, because that did justify holding it unconstitutional to admit evidence of the results of the search, as it was made.
MR. KEARNS: Well, we feel that in the Wolf case this Court did not intend to make it a general matter or proposition of that sort, because of the fact that there are such exceptions where, as in the Lindway case, where there is real criminality, where there is violation of law knowingly, intentionally, and profitably, as in the case. In this case, shall we have our constitutional rights denied when we do not violate a law except, probably, looking at or reading, for the mental state, the wrong type of literature.
THE COURT: Do you think this comes within the doctrine of the Rochin case?
MR. KEARNS: I think it does, I think it does. I think it does. Here we have a situation, if it please the Court, where there was absolutely no intent to violate the law, the public could not be injured. We were speaking of the damage that narcotics may cause by being in possession. That’s a matter of health; that’s a matter of the body. Here we are trying to control the American mind as to what they shall read and as to what they shall not look at.
THE COURT: What particular acts bring it within the Rochin case?
MR. KEARNS: I can’t say definitely, Your Honor. I’m very sorry, but I don’t have all of the facts in the case, just the conclusion that I came to on that.
I want to thank the Court very, very much for the opportunity of appearing before you.
[Whereupon, argument in the above-entitled matter was concluded.]