United States v. Jack Kopel Tupler and Bernard Haft

564 F.2d 1294 UNITED STATES of America, Appellee, v. Jack Kopel TUPLER and Bernard Haft, Appellants. No. 76-2512. United States Court of Appeals, Ninth Circuit. Nov. 22, 1977. Burton C. Jacobson (argued), Beverly Hills, Cal., Bernard A. Berkman (argued) of Berkman, Gordon, Kancelbaum & Levy, Cleveland, Ohio, for appellants. R. A. Wright (argued), Las Vegas, Nev., for appellee. Appeal from the United States District Court for the District of Nevada. Before GOODWIN and SNEED, Circuit Judges and HILL * , District judge. GOODWIN, Circuit Judge: 1 After a jury trial, defendants Tupler and Haft were convicted on two counts of interstate transportation of obscene materials in violation of 18 U.S.C. §§ 2 , 1462, and 1465. We reverse the convictions because the search warrant under which the allegedly obscene films were seized did not meet constitutional requirements. 2 There is no substantial dispute about the facts leading to the issuance of the warrant. On April 29, 1974, FBI Agent Murray received a call from the Las Vegas manager of Trans World Airlines. The manager told Agent Murray that a three-carton shipment from Philadelphia had just arrived, that the bill of lading…

After a jury trial, defendants Tupler and Haft were convicted on two counts of interstate transportation of obscene materials in violation of 18 U.S.C. §§ 2 , 1462, and 1465. We reverse the convictions because the search warrant under which the allegedly obscene films were seized did not meet constitutional requirements.

There is no substantial dispute about the facts leading to the issuance of the warrant. On April 29, 1974, FBI Agent Murray received a call from the Las Vegas manager of Trans World Airlines. The manager told Agent Murray that a three-carton shipment from Philadelphia had just arrived, that the bill of lading described its contents as “leather novelties”, and that one of the cartons was damaged and partially open. The open carton revealed smaller boxes containing 8-millimeter movie film. Affixed to the film boxes were photographic labels which portrayed sexual activity.

The following day, Agent Murray went to the airport, where the TWA manager showed him six of the film boxes. 1 Each of the boxes bore a different title and each purported to contain a film from one of two movie series: “Hollywood Swingers” or “party girls”.

After examining the film boxes, Agent…

(concurring in the result):

I concur in the result reached by Judge Goodwin and with all of his opinion save those portions which discuss in general terms the circumstances in which probable cause can be established even though there is no examination “of at least a fair sample of the material itself.” As I read Judge Goodwin, such circumstances are virtually non-existent. A “searching focus” on the question of obscenity requires this result, Judge Goodwin appears to say.

I believe this is too demanding. For example, I would affirm this conviction had Agent Murray viewed at the book store film contained in boxes similar to those discovered by the employee of Trans World Airlines, and in his affidavit had described what he saw in a manner that would permit the magistrate to have probable cause to believe that it was obscene. Obviously, the film shipped could have been different from the film Agent Murray would have viewed. But this possibility, in the light of the surrounding circumstances, to me is sufficiently remote to permit it to be ignored in determining the existence of probable cause to believe the material obscene. I doubt Judge Goodwin’s opinion would permit me to reach…