Kingston v. Utah County

948 F.Supp. 1522

Janae KINGSTON dba Movie Buffs, Plaintiff, v. UTAH COUNTY, Carlyle K. Bryson, David Bateman, John Does I-X, Defendants.

Civil No. 96-C-937G.

United States District Court, D. Utah, Central Division.

December 9, 1996.

Jerome H. Mooney, Salt Lake City, UT, for Plaintiff.

Peter Stirba, Salt Lake City, UT, for Defendants.

ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

J. THOMAS GREENE, District Judge.

This matter came for hearing before the court on plaintiff's motion for preliminary injunction to restrain Utah County from filing criminal obscenity charges against plaintiff based upon videotapes and materials seized pursuant to a search warrant. Plaintiff was represented by Jerome H. Mooney and defendants were represented by Peter Stirba. The parties had appeared previously and defendants agreed to maintain the status quo and not file criminal charges pending a hearing which this court set for November 22 1996, continued to November 27, 1996, at the joint request of counsel. Extensive memorandums of law have been submitted by both sides, and evidence was presented by both sides at the hearing. Following the evidentiary hearing and argument of counsel, the court took the matter under advisement.

FACTUAL BACKGROUND

On October 9, 1996, defendant Carlyle Bryson, County Attorney of Utah County, State of Utah, received information from a concerned citizen to the effect that sexually explicit and believed to be pornographic video movies were being rented to the general public at locations in American Fork and Lehi — two cities within Utah County — at places of business operating under the name of "Movie Buffs." Thereafter, County Attorney Bryson directed peace officers to investigate by viewing the premises and renting some videos from each place in order to review the content for possible violation of Utah's pornography statutes.¹ This was done on October 17, 1996, by an officer entering a room marked "Adults Only" at each place of business. In each of the separate rooms the officer "perused the videos and their content information" as set forth on the cardboard jackets relating to each video. The officer observed that

some contained markings such as "XXX Adults Only Must Be Over 18 To View This Tape." Others did not contain such information, or any information, or contained a home-style printed label without rating information.²

Officer Smith selected a video for rental from the American Fork location entitled: "The Anals of History" and from the Lehi location entitled "Butt Busters."

The aforesaid videos were delivered to the Utah County Attorney's office where they were viewed. The Utah County Attorney requested another peace officer to rent other videos for evaluation. This was done on October 20, 1996, by selection of videos from the American Fork store entitled: "Buttsisters Do the Twin Cities" and "Sticky Lips." These videos were likewise taken to the County Attorney's office where they were referred to a law enforcement investigative specialist who viewed and evaluated them. The investigator found the videos to contain obscene, graphic displays of sexual conduct believed to violate Utah's pornography statutes based upon Utah County community standards. The County Attorney was told by the police officers who viewed the premises that virtually all of the movies in the "Adults Only" areas appeared to be sexually explicit and pornographic.

The sexually explicit cardboard jacket relating to the video "Buttsisters Do the Twin Cities" had a sticker affixed which said "Cable Version,"³ but the video itself was sexually explicit and apparently unedited.⁴

On October 25, 1996, peace officer Gordon Smith presented the matter, including an Affidavit in Support of Request for Search Warrant, to Magistrate Judge Backlund in Utah County. The affidavit set forth in graphic and descriptive detail the sexually explicit conduct contained in the four videos which had been rented by the peace officers.⁵ The affidavit also set forth the police officer's observation that the apparent content of other movies/videos being rented or sold from the "Adults Only" rooms within the premises of "Movie Buffs" was pornographic and evidenced violation of Utah law against distribution of pornographic material.⁶

On the basis of the presentation made, the magistrate found probable cause that property was being used to commit an offense, constituting illegal conduct in violation of Utah law. A search warrant was issued which directed peace officers to search specifically described areas at each "Movie Buffs" location for evidence of the distribution or conspiracy to distribute videos in violation of Utah's law prohibiting such, with the following restrictions:

1. Only specifically described areas were to be searched, and in particular the "Adults Only" rooms.

2. One copy only of any movie/video could be seized.

3. Videos with jackets containing markings such as "M" [Mature], "XXX" or language which conveys "Adult Only Viewing," "Adults Only," "Must Be 18 Years or Older to View This Video" or any combination thereof were to be seized.

4. Videos which did not bear a movie rating as granted by the Academy of Motion Picture Sciences of Hollywood were to be seized.

5. The search and authorized seizure was limited to videos which might evidence the distribution of pornographic materials.⁷

The warrant was executed and a search was conducted at both locations on October 25, 1996 which according to testimony resulted in seizure of 829 videos and 135 empty video jackets.⁸ Some videos from each "Adults Only" room were not seized because the jackets or cases relating to them did not appear to be sexually oriented, and about 150 videos, mostly taken from the Lehi store, were returned when discovered not to so relate or were determined to be of no evidentiary value or not germane.

The search warrant also directed search of the area "on top of cashier/front counter" where rental videos are returned. One video, "Shooting Star," was found in plain view on top of the counter in a sexually explicit jacket (rather than the transparent jacket normally used) directly in the custody of or in proximity to an employee there who was a minor, seventeen years of age. That video and the jacket were seized by a searching officer.

The search warrant also directed seizure of records of "any rental or sale" of videos described, as well as "documents or information" regarding the "purchase, order or delivery" of the said videos. "Movie Buffs" was determined to be a business owned by plaintiff Janae Kingston, doing business under that name.

Testimony at the preliminary injunction hearing by Larry Peterman, the General Manager of "Movie Buffs," was that "Movie Buffs" does not purchase X rated videos from suppliers, but only copies edited for cable viewing which are marked with a label "Cable Version." He testified that the company relied upon suppliers to provide cable versions only, not the "hot" unedited versions. He further testified, however, that he had become aware and "sure" that some of the videos for rent at American Fork and Lehi showed vaginal intercourse, fellatio, cunnilingus and explicit pictures of female and male genitalia. He said that some videos had been placed in the "Adults Only" room, non sexual in nature, because they constituted adult-type material not appropriate for viewing by minors.⁹

Mr. Peterman testified that since the search warrant was executed on October 25, 1996, revenues fell below what otherwise would have been expected, and that the video rental market "is highly competitive." He further testified that rental revenues are seasonal and for that reason should have increased "slightly" this time of year during the month following the search. He didn't think that an increase in overall revenues of the "Movie Buffs" stores of over $200,000, or 15% during the month, would have occurred despite the search warrant as a result of seasonal upsurge. But he offered no explanation if such an increase had occurred. The rule requiring exclusion of witnesses was invoked at the commencement of the hearing. Movie Buffs' Operations Manager, Laura Shupe, testified immediately before Mr. Peterman took the stand that gross sales in the Utah stores didn't meet expectations during the month immediately after the warrant was executed, but also testified that there had been a "significant" overall increase in rental revenue, in excess of $200,000, which she attributed to expected seasonal variables.

None of the witnesses called by Movie Buffs were aware of any request or notice given or directed to be given on behalf of plaintiff to trigger the procedures under Utah law which provide for an immediate judicial probable cause hearing concerning alleged obscenity of seized materials. That law requires such a hearing upon request within 7 days. It also requires that a copy of any film seized may be obtained by the claimant, and provides for a prompt judicial ruling, as follows:

In the event that a search warrant is issued and material alleged to be pornographic is seized under the provisions of this section, any person claiming to be in possession of this material or claiming ownership of it at the time of its seizure may file a notice in writing with the magistrate within 10 days after the date of the seizure, alleging that the material is not pornographic. The magistrate shall set a hearing within seven days after the filing of this notice, or at such other time as the claimant might agree. At this hearing, evidence may be presented as to whether there is probable cause to believe the material seized is pornographic, and at the conclusion of the hearing the magistrate shall make a further determination of whether probable cause exists to believe that the material is pornographic. A decision as to whether there is probable cause to believe the seized materials is pornographic shall be rendered by the court within two...