author: Per Curiam.

text:
    COMBS v. UNITED STATES
    No. 71-517.
    Argued April 11, 1972
    Decided June 26, 1972

      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 Curiam.

We granted certiorari on claims that evidence introduced against petitioner was obtained through an unlawful search that petitioner has standing to challenge. The Government now suggests that the warrant authorizing the search was invalid, but that further factual deter-initiations 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 trial under 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 Hazard, Kentucky, where they stored it in a shed on a farm owned by petitioner’s father.

Sometime later, Martin 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 an affidavit, which the Government now suggests was 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 discovery and seizure of 26 cases of whiskey identified as having been stolen from a railroad shipment intended for delivery to the Michigan Liquor Control Board. Petitioner was not living on his father’s property, nor was he present there when the search and seizure took place.

Prior to trial, the defendants 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, 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 search and seizure. 446 F. 2d 515.

In concluding that petitioner lacked such standing, the Court of Appeals noted, inter alia, that he had "asserted 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 record 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 U. S. 364, 368 (1968). 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 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.

       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.

      Section 659 provides as follows:
      “Whoever . . . unlawfully taires, 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 . . . .”

       No evidence relating to petitioner’s standing was introduced at the hearing.

       The Court in Mancusi relied upon Jones v. United States, 362 U. S. 257 (1960), as having 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 Court held that the petitioner then before it had standing and enunciated two rules as alternative grounds for its decision. First, the Jones Court ruled that the “possession on the basis of which [an accused] is to be . . . convicted suffices to give him standing under any fair and rational conception of the requirements of Rule 41 (e),” Fed. Rule Crina. Proc.; second, the Court ruled that “anyone legitimately on premises where a search occurs” 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 aspect of the Jones holding, and we decline to reach or consider issues not yet passed on by that court.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Douglas,

license: Public Domain

text:
    KOIS v. WISCONSIN
    No. 71-5625.
    Decided June 26, 1972
   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 was sentenced to consecutive one-year terms in the Green Bay Reformatory and fined $1,000 on each of two 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 possession 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 court, 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 was clearly entitled to the protection of the Fourteenth Amendment. Thornhill v. Alabama, supra. The motion for leave to proceed in forma pauperis and the petition for writ 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 Both 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 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. While “contemporary community standards,” Roth v. United States, 354 U. S., at 489, must leave room for some latitude of judgment, 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 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.


text:
    BEECHER v. ALABAMA
    No. 71-6497.
    Decided June 26, 1972
   Per Curiam.

In 1964 the petitioner was tried and convicted in an Alabama state court for first-degree murder. He was sentenced to death. The conviction was based in large part on written confessions that he had signed five days after his arrest. The petitioner objected to the introduction at trial of these confessions. But the trial court and the Alabama Supreme Court held that the confessions were made voluntarily and were properly received into evidence.

In 1967 this Court summarily reversed that judgment of the Alabama Supreme Court. Beecher v. Alabama, 389 U. S. 35. We said:

“The uncontradicted facts of record are these. Tennessee police officers saw the petitioner as he fled into an open field and fired a bullet into his right leg. He fell, and the local Chief of Police pressed a loaded gun to his face while another officer pointed a rifle against the side of his head. The Police Chief asked him whether he had raped and killed a white woman. When he said that he had not, the Chief called him a liar and said, 'If you don’t tell the truth I am going to kill you.’ The other officer then fired his rifle next to the petitioner’s ear, and the petitioner immediately confessed. Later the same day he received an injection to ease the pain in his leg. He signed something the Chief of Police described as ‘extradition papers’ after the officers told him that ‘it would be best. . . to sign the papers before the gang of people came there and killed’ him. He was then taken by ambulance from Tennessee to Kilby Prison in Montgomery, Alabama. By June 22, the petitioner’s right leg, which was later amputated, had become so swollen and his wound so painful that he required an injection of morphine every four hours. Less than an hour after one of these injections, two Alabama investigators visited him in the prison hospital. The medical assistant in charge told the petitioner to ‘cooperate’ and, in the petitioner’s presence, he asked the investigators to inform him if the petitioner did not ‘tell them what they wanted to know.’ The medical assistant then left the petitioner alone with the State’s investigators. In the course of a 90-minute ‘conversation,’ the investigators prepared two detailed statements similar to the confession the petitioner had given five days earlier at gunpoint in Tennessee. Still in a ‘kind of slumber’ from his last morphine injection, feverish, and in intense pain, the petitioner signed the written confessions thus prepared for him.” Id., at 36-37.

We were led to “the inescapable conclusion that the petitioner’s confessions were involuntary.” Id., at 38. For “[t]he petitioner, already wounded by the police, was ordered at gunpoint to speak his guilt or be killed. From that time until he was directed five days later to tell Alabama investigators 'what they wanted to know,’ there was 'no break in the stream of events,’ Clewis v. Texas, 386 U. S. 707, 710. For he was then still in pain, under the influence of drugs, and at the complete mercy of the prison hospital authorities.” Ibid. Because the confessions ''were the product of gross coercion,” we held that their use at the petitioner’s trial violated the Due Process Clause of the Fourteenth Amendment. Ibid.

Only three months after this Court’s decision, the petitioner was reindicted and retried for the same crime. Again, a confession was introduced in evidence. Again, it was a confession made by the petitioner shortly after he had been shot and arrested and shortly after he had been given a large dose of morphine. Again, the petitioner was convicted and sentenced to death.

The confession used at the second trial was not exactly the same as the ones that had been used against the petitioner at his first trial. It was not one of the written confessions made by the petitioner in an Alabama hospital five days after his arrest. Instead, it was an oral confession that the petitioner had made in a Tennessee hospital only one hour after his arrest.

One hour after the arrest, in extreme pain from the gunshot that had blown most of the bone out of one leg, the petitioner was brought by police to a Tennessee hospital. There, a doctor gave him two large injections of morphine. The petitioner testified that the morphine “kinda made me feel like I wanted to love somebody; took the pain away; made me feel relaxed.” From then on, the petitioner said, he could remember nothing. But the doctor testified at trial that he had asked the petitioner “why he did it [the crime].” According to the doctor, the petitioner then made an oral confession. Although police were in the area guarding the petitioner, the confession was made only to the doctor.

The Alabama Supreme Court held that this oral confession was made voluntarily and was admissible in evidence against the petitioner.. Beecher v. State, 288 Ala. 1, 256 So. 2d 154. We do not agree. We held five years ago that the confession elicited from the petitioner at the scene of his arrest was plainly involuntary. We also held that his written confessions five days later, while in custody and under the influence of morphine, were part of the “stream of events” beginning with the arrest and were infected with “gross coercion.” 389 U. S., at 38. The oral confession, made only an hour after the arrest and upon which the State now relies, was surely a part of the same “stream of events.”

We hold now — as we held before — that a “realistic appraisal of the circumstances of this case compels the conclusion that this petitioner’s [confession was] the product of gross coercion. Under the Due Process Clause of the Fourteenth Amendment, no conviction tainted by a confession so obtained can stand.” Ibid.

Accordingly, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted. The judgment is

Reversed.

       Although at the second trial the Chief of Police who arrested the petitioner denied having made an explicit threat to kill him if he did not confess at that time, the fact that the petitioner was surrounded by a very angry mob and that police were holding guns on him and even fired one shot by his head is enough to support our original conclusion as to the grossly coercive nature of the police questioning at the scene of the arrest.