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270146 WHITE - CITV CLERX ^W�� PINK - FINAMCE ��'� 7 CANARY��EPARTMENT � GITY OF SAINT PAITL CO1111C11 ` � BLUE AVOR Flle NO. Y , O rdin�znce Ordinance N 0. �"�� Pr � esented By Referred To Committee: Date Out of Committee By Date An ordinance to amend Chapter 476 of the Saint Paul Legislative Code relating � to obscene materials. THE COUNCIL OF THE CITY OF SAINT PAUL DOES ORDAIN: Section 1. Section 476.03 of the Saint Paul Legislative Code is hereby amended to read as follows: "476.03. Obscenity Prohibited. (1) It shall be unlawful for any person when, knowing its content and character, he: (a) �holesale promotes, romotes or possesses with intent to wholesa e promote or pro- mote, any obscene material; or (b) Produces, presents or dir�cts an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity. ' (2) Any person who shall violate the provisions of this section shall be guilty of a misdemeanor." COUNCILMEN Yeas Nays Requested by Department of: Butler � Hozza � In Favor Hunt R�o�r � AgainSt BY � Tedesco Adopted by Council: Date Form Appr ed by Cit torn Certified Passed by Council Secretary BY � By `aproved by Mayor: Date Approved by Mayor for Submission to Council By WHI7E - CITY CLERK COI111C11 �• * 4� y1� PINK - FINANCE �, / � CANARV • DEPARTMENT GITY OF SAINT PAUL � ' � �- -� BI.UE� ��AVOR � . Fll@ NO. Ordin�nce Ordinance N 0. �� Presented By Referred To Committee: Date Out of Committee By Date Page 2. Section 2. This ordinance shall be in force and take effect thirty (30) days following its passage, approval and publication. COU[VCILMEN Yeas Nays Requested by Department of: Butler Hozza In Favor Hunt '�""�' � Against BY Roedler � Tedesco Adopted by ncil: Date !t Form Appr v by City ttorne r,-.�A .., 7 �7'�l/ ( f,� G Certi ' d Pas y Cou cil Secret�ry BY L App ed by Mayor: D te EC 2 7 19T7 Approved by Mayor for Submission to Council By BY P�aus��o o�c 3 � �977 , , , 5 � lst �,� 2nd �� l ? r 3rd � � J 1 Adop ted �o� ��_. i ' Yeas Nays BUTLER HOZZA � HUNT �� _ ��- � " ROEDLER TEDESCO ' PRESIDENT ( . , , `y b !-" �4,� �/A ' � � °�. . W) RECEfVED �,�•__ �•tir CITY OF SAINT PAUL : - •� Nova9 �t, ? , a OFFICE OF THE CITY ATTORNEY � " � ��"� Harriet Lansing, City Attorney '`` O�FiCE OF FtOSALIE L. E3U7LER 647 City Hall,Saint Paul,Minnesota 55102 George Latimer Mayor 612 298-5121 November 28, 1977 M E M 0 R A N D U M T0: Rosalie Butler Member of the Council FROM: Philip B. Byrne� Deputy City Attorney Somewhere in the process of working with the original and all subsequent drafts of one of the six obscenity ordinances, a key word was omitted from that ordinance dealing with the basic prohibitions against sale of obscene ma.terials. As many times as that and the other ordinances were read and re-read by everyone concerned, nobody caught the omission. The key word was in the initial draft prepared by Wozniak and CampbelT;' Itis clear to me that the error was unintentional. It is also quite clear that the omission should be rectified, and could be accurately described as a housekeeping or revisor' s amendment that will conform the ordinance to the intent of the Council in adopting it. Attached is a draft ordinance which will achieve this purpose. The word which is underlined is, of course, the word that was in the very first draft and inadvertently omitted in all succeeding drafts. Beryl Nord is the attorney assigned in the office to licensing and ma.tters relating to obscenity legislation, but under the circumstances I thought it would be more appropriate for me to draft this particular ordinance. ' Also attached is a copy of Judge Amdahl' s Order upholding the search warrant for the Alexander brothers' premises. PBB:j r cc: Beryl Nord ��,;� Harriet Lansing -,s . 1�37 , _ - . . � , /r n . � ,� � ,�'�f�14+� . �. ,- . / , _ } �- -� 7 0 9~ � � � `'' ., _ �� +� �, ,, l��T . pROSEC�r1rrG A rroR�� STATE QF MINNESOTA DISTRICT COUR1.' COUIITY OF HECdiJEPIN FOURTH JUDICIAL DISTRICT � Ferris J. Alexander and �dward J. Alexander, Plaintiffs , -vs- � ORD � R � - City of St . Paul, � File No. 69169 Defendant. . - ---------------------------------------------------------- � � �: . The above-entitled matter came regularly on for hearing ; `'before the undersigned, Judge of the �District Court, on November � � 9, 1977 on motion of the plaintiffs pursuant to Minn. Stat. §626.21, for an order;` ''directing that all items seized from 900 Hennepin Avenue, Minneapolis , Minnesota, and 20-22 North Fourth Street, i�inneapolis , Minnesota, on or about Septe�ber 23, 1977, .. pursuant to a search warrant issued by this Court on or about _ September 2I, 1977, be suppressed froin evidence in any criminal prosecution currently pending or hereafter to be brought by Defendant against Plaintiffs, and furth�r d�irectin� the immediate � return of all said items to Plaintiffs . " � - Randall Tigue, Esq. , appeared for and on behalf of Plaintiff Ferris J, Alexander in support of said motion; and Benjamin S. � Houge, Esq . , appeared for and on behalf of Plaintiff �dward J. - - � Alexander in support of said motion; Daniel H. I�iabley, Esq. , Assistant City Attorney of tlZe City of St . Paul, riinnesota, appeared for and on behalf of Defendant in opposition to said motion. -1- . . 'r��IA.�S��'�(J"f�'�.��2'�" '+�"'_'�,��F ��.�r�.-1~'�S�''��'"•. :•" �„~-+'�-.-.-r.:+ "�'�' _'` ��'�{� � �� • .��.'��. . i �y a i^ r�?"� . �;1'd. .... �.:.�f+�e ,�f�� "'3"J�„ -,?;"'?"'r1' •'ti-f-"•,3,. �,,r_,�/'r�� Sv��,%.._v,,,R .n„ �M.%�;,.�,�•,.-�:c��-�� ;..Y�. r ,�-�„�. �!''� ,�}!'"� . ...:,�.1.� '�~�� :,JW.'�"`��,A ,��7M ' +. -�w�.�� ra�•. . �lt �_a~ A��"� �:T +�(�.'�� L `j. �1 ��' . R -5.-� . .`�*�!^�.iP!?e�-.l�a`�2:�`.�.r.r.e�..r'.�� ~'J_ 1+!!�..-�.1- :..�..{'�..:......['��r`�_t'�.T�'�T.�'_.`�':�'' .4� _ . ..-1. . . . . .. . . � . � � - . . . ...:+�� ' . . � ... � , . � � � . � . , . . . . . . - . .. - � ' � . . � � _ . . - . Upon aZt th2 til.s , records and proceedzngs nere�_n, and � upon the arguments made, and memoranda suUmitted by counsel, IT IS ORDERED: That plaintiffs ' motion be, and hereby is, denied. . BY THE COURT: . �-� _ ;: - �� _ - - - �'. �%�/ - vember 1977 . -� � ,_- / ; � Dated: No o��„ - �� Douglas K. Amdahl, - � ' - � Judge of D�is trict Cour t. - . . . . . . . . . _ . . `,F . .. . • . - .. . .. . .. . . . - '2- . . � ;� • � . _ , . ; - - - ;,�. . . .. . ' .. �,�.a„ti`�4y`•'y%!(;•-��.y��'a'?r+�.tisw+.��;i�S:..C''i"+��'i'�r�S?�r t�'�w'7��.y� :ti�:�'� ' r.Y-'yi��..r,t':7_.;�i��r��1e�4.�:y....��4'�Y�+�` �.;� .,�_�J�,y�� r 1 .. . � . � .! T� r� , � �'�� ..� ti,.ti • . v� :.,`'� r� : �c �•.i� ��r �,'• y � ��'��y ��,�,��,�+.y 7�^��,� .� • . � t i-+L� ""'s•+�rV+�� tf� y!� !'_�_"4J1'��"1""It,��M+�,�y�+r.s�C1?"HL`fC�'�.'Sb?�'��Sf,�c1�+'�.�,�ai.�'t��R. �1MY .�.�-,� '.!.�,►.v..cs�!►w�R'�+.�`r5+.3L Y'!i,�+a��!".t4i .�: _ - � . MEri0RA1�TDUM On September 21, 1977 the undersigned was presented with � two documents entitled, "Application for Search jJarrant and Supporting Affidavit . " The application in each case was made by one Gary t�1. Bohn and the aff idavit supporting the application in each ease was identical to that in the other case and each was executed by Thomas R. Hughes, an attorney for the City of St . Paul. Cop ies of the application and affidavit in each case are � - ;�contained in the �court file of this matter. - _ _ In :'each case the ' application asserted as grounds for issuance . ._.,_ > . . _ . . �of the requested �search warrant the fifth ground set forth in _ _ Minn. Stat. §626 .07 and stated: _ ':The property above-described constitutes evidence which tends to show a crime has been committed, or tends ta show that a particular person has committed a crime." The Court �executed and issued each of the applied-for warrants � solely upon the application of Mr. Bohn and the affidavit of Mr . Hughes . I1o� other document or information was presented to the � . Court as a basis for such execution and issuance. � � . The first of the two search warrants (which has now been . . _ designated as Search 4larrant No. 3500) granted authority to search the premises at 900 Hennepin Avenue in the City of Minneapolis , � County of Hennepin and State of P�linnesota for: � "Business records relating to tne operation and ownership of adult boolcstores at 471 Wabasha, 453 Wabasha, 550 Rice Street, 621-625 University Avenue, and a warehouse located at 39 E. Eighth Street, St . Paul, I•linnesota." - The second warrant (now designated as Warrant 3501) granted authority to search the premises at 20-22 and 28 i1 . Fourth Street, in the City of Nlinneapolis, and 1975 Chevrolet Suburban, Lic. PJo. EE5172, 1975 Cadillac, Lic . No. NP 5202, 1976 Chevrolet, Lic. tdo. i�M2449, 1971 Cadillac, Lic. No. DJ 1690, 1973 Chevrolet, Lic . No. t4-1 - , ,• � ' . . .. " ' • S. j._ .l� y �..+ : ___ - . . � �, •" . - .�. - . . � .�r.M,�^..x. ., , .- _� �`,Q•�� 1r;�-�•��.:�..{w..,�. � �,�.f'.r:..\.J•�TS":Y.. ��,�''""^'4 �-.�^";y�, i^^�j'^�T�A.r�� i "�':��'�,[�:�:��.l."�.}"'V �;�, ��- `� �.�.•,�ti3F.��F , •�� .��?�.+��!+��F..Lrtjr+.w+y+�++y'.?'��a..i�'?'o�i��'� �y'��'� ��A'�..• `►w��r J-� i� -`liji h� �_�~'�'�`r�'�n."�� °� ;J „f r•..._��"� 'F� � -.ti `k '�'T � �.'X'�f�r .fi�� ,Y'�'� V�Stis s.:.�e_,L�.:�:.i �► erY!!r. �i7k�� .;: � .+�..�...s--'3.'r. �-..�- � .-�� . � , ; R09815, 1977 Ford Pickup. Lic . No. YD5100Z, and 1976 Cadillac, Lic . IJo. BUL 287, for : Business records relating to the operation and ownership of a3ult bookstores at 471 Wabasha, �+63 iT��.basha, 550 Rice Street , 621-625 University and 39 E. Eighth Street, St . � - Paul, Minnesota, and certain cash marked for identification by St . Paul police off icers . " - The two search warrants were executed on September 23, 1977 and the following property was seized at the premises at 90� �. Hennepin Avenue pursuant to Warrant ��3500 : 10 ledgers - notebooks and contents � 6 paper packages of receipts 8 manila folders and contents 1 copy of a 1976 Federal Income Tax return, SSii 468-14�-0833 � The' foYlowing items were seized at the premises at 20-22 N. Fourth:-Street. ' � 28 quarters 1 -, $10 biTl � 1 -- $5 bill miscellaneous tally sheets miscellaneous business papers t3o property was seized from any other areas designated by � the . search warrants . Plaintiffs' present motion has been brought pursuant to � Minn. Stat . §626 . 21 and and defendant does not challenge the Court' s jurisdiction under such statute . ` �- . The plaintiffs fir'st challenge the validity of the search warrants in this language: "The search warrants in the instant case were unlawfully issued because neither the application for the search warrant nor the supporting affidavit alleged sufficient facts to constitute probable cause to believe that the items seized constituted evidence tending to shoTa a crime had been com�-zitted or tending to show that a particular person had .> com►-nitted a crime. " � Plaintiffs assert that the only definition of the word "crime" in the Minnesota Criminal Code is that contained in Minn. Stat. §609 .02, Subd. 1: rI-2 `�. . ,�;;..,,� ��' � . � . � � �,+y -.a�.i�� ,'sy.ay.��J/'Y� ' �r�. �r ^1�.�i' � �.� ��,.,y��.y� . -1�.�y�(��'`�v�� r�. i�.I�:�-��i�� _ � � _ .. ��. ,� •Yr � � �• ,,�-Sr�s T '. +�F - ''� 3' .�j�..4�Vs-� ' > V��,y�J�.�'�..T"'u . ��f '.:"�s} -`s�t'�,i�!' J Y er �� +��t� °-�"v��..J�� ,y . r+�:.�. ,t,;, K.(�� '� ,,,,,� � r +n�f'� � �d'..rr'fi.t°.,,f..r�",rY _.,i!_�[ l'Y.�r � �.•_ .l+r"�',t��S-M I. �I+C Mt � � 'u%'?` "C� ��es. '<<,Y.{��1i1.� a sirVJ �.`;da-"�i �M �7 ..Y!`�`'r y�,�_ �_'r '�.' A ��,•;� '�: i„�„ ,h^ti�� ' �.'l+'.. ,y't-�1!"1►.,-'s'�. "1. �.. 4.' ^��'.:rF.�+!�.'.eK -- .�� r-,�! ..�51�' a\. .. _ .-_-. •+ . . _ . . . _ . . �r.�yr�l.' "Crime. 'Crime ' means conduct which is prohibited by � statute and for u�hich the actor may be senteciceu to imprisoninent, with or without a fine . " The parties agree that the only statutory prohibition which could be applicable in this matter is P�inn. Stat . §617 . 241 which provides : "It is unlawful for any person knowingly to exhibit, sell, print, oFfer to sell, give away, circulate, publish, distribute, = or attempt to distribute any obscene book, magazine, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, motion picture f iln, play, ir.►age, - instrument, statute, drawing, or other article which is obscene. `Obscene' for the purpose of this section is defined as follows : Whether to the average person, applying ' - contemporary community standards , the dominant theme af the � �aterial taken as a whol.e appeals to prurient interests . _ ` "Ariy�person�viaZatirig any� provision of this _ section shall be..�fined not' l.ess than $20 nor more than $100 for each �_ ; . offense. " - � .. -. _:_. _ � - It ,`'is apparenk that if the offense charged here was based : . - . on the 'above-quoted �statute, that the search warrants could not issue for the reason that the statute provides only for a fine for its violation and not imprisonment. The parties also agree here that any offense charged or to be charged in this proceeding is that of a violation of City of St . . Paul Legislative Code §476. 03. Such section is a new ordinance of the city which became effective August 29, 1977 and �ohich provides, so far as applicable here: � � � � " (1) It shall be unlawful for any person when, knowing its content and character, he : � (a) wizolesale promotes, or possesses with intent to wholesale pronote or promote, any obscene materials; . (2) . . .shall be guilty of a misdemeanor." •_ _ The term "misdemeanor" is not defined in the St. Paul Legis- � _ lative Code. However, §501. 18 of the code provides that state law definitions may be used and the term "misdemeanor" is defined in Minn. Stat . §609 .02 Subcl. 3 as Follotas : M-3 .--. . —-- --- - -- --- - --- --- � � __ . _ __. , ._. . . . . . � - . . . . . . ,� .. . _ . _. �-,..:., ,- ; , , �z. .� �• •v.r;`'�.,^•f �J:.. ...x.��i.4,"'�•M'�..'1r,J�X�•'• "� -�T±iC�.''�vw�ri•j;, -�?.":s,�- � �. ,�,'•.,.v1. •1'••`',1��, .'Z�'r..r.•Y1�,,'�-�'.'f.2�.�`'..�;rr .i-• i1�,�,: A':°,,,,'aCti,`gi'�ws , � . " ,' „�� '+aJM"C �-�.•^?� � �.�dyJ�.�_�Y�'�.I�S. .�?"��•�� ' A•�y�:•P�.Ma.'►��r � , � .t..,y� .+y.:a:�J1t1�� y� T..�,��J�+ti2r • ,��.L�� :�«+��,':'�'�K71..�!�i�r+s`�'�[�-•i� ��.7�'7�� .. !�Y"'_T-��T��atiA�f7��iv�+Til�~=a"!=/�:v.�i'Y •,G%:��'��i�!!�r'�.� _ _. . . ...��;r:��. ,;��• - �.:...v�.A^v tir.".iXrai�L"''" '.:.�_:,.. . �— ..• "�a�....�,,,��' -,.�n. "Subd. 3. rlisdemeanor. 'P�Iisdemeanor' means a crime for which a sentence �f r.�t more *_-han 90 days or a fine of not more than $500 or both, may be imposed ." (Underlining supplied. ) It is clear from the foregoing that any person convicted of violating §47b . 03 of ' the St . Paul Ordinances could be sentenced for a term of not more than 90 days of� imprison�ent . Thus , the first issue for determination here is whethEr � a violation of an ordinance which provides for ir:iprisonment of such violator is a "crime" within the purvie�o of Minn. Stat. §626 .07 (5) which authorizes the issuance of search warrants for � � property� which "tends to show a crime has been committed, or tends to show�.that �a particular person has committed a crime . " (Under- _ :: lining supplied.) �'` � � It is unquestioned that cities are created by the state and - , - - that the authority of ci.ties to adopt ordinances is a delegation of power by the state. . There are almost innumerable decisions � involving punitive . • ordinances and the designation under which they should be known . Justice Matson in writing for tlie court in State v. I�etterer, 248 Minn. 173, 79 N .W. (2c1) 136 stated: � . " . . .This court, with a happy indifference to consistency, has referred to offenses against municipal ordinances and to proceedings for prosecution of the offenders as noncriminal, quasi-criminal, petty, and criminal." In Ketterer (supra) the Justice also quoted from the language of Justice rlitchell in State ex rel. Erickson v. West, 42 Minn. 147, 151, 43 N.W. 845, 847 wherein the latter spoke of ordinance .s violations in this language: � - M-4 ,s--- . .,�- �z► = " .>.. � : _ �: �,,. `�.�� y "t ac��'y„+y.�� ..4T�V 1K'I .:.. . ' . � . . �.f•,sEA.� +� r' � �`., ' :-} _ -.-+�T�v'f'� �.�_ ,��c,ryv�.n,�'fr/y�'��w� • 1-Y"�-' ! =��'aq.r.f�r .�lr • t?��r��n�1�.�I�..�I'f� {V'!��`��.r1�y�.�...r �`�.� [y'I �w�1/� .�w/�ahf:yM�` � r, t � r✓`J'M�/��ti �`�_ �,��s-f�?. . .... �. �' �- _. �. '_�.r� !1*1�. . . . '�. L.,. �`L - �� `�'1.�`t l-��t .�wi:+.."'�'�f"�,+� "ltt.� •� . �,....P��=��.�.�, Y ..�.?�F�"�'�� y.�!J r� �1°s.�+%qo► ..� �r.+x.a o�a�y.t"'rh:.err we .f'� �, i-�'r •. 'i•�� ,..; �t.�.s. f::^�r;+.-''.'".,.s'� -�' �..-r/' �� '�'4-t -:�'..�cSr.r.+.•l,►:�..+.s�a:.��t�t��i'c'.jon�.-'�.,.'s.:.�;y,�.,J�.., i;`1`�,a�,r.;�:� -a-,s. --_..:..-,.�.-�+�c".r,,,:•...r��-tiz.1��a � k..f... - � _. , , : �� _ °� .c. � � - ,_ ._ , , -- �;. r,. " �, �'� t ��.� x�.,� � � ,x� 2 .. _�..,.,:: ��}r :�. a ��,:. � . .,.� 1n'n��.4.�Y� �� . nl&i,wv°.r��fl+.�-.:t�.1R . `!"_'" -' . ... .. . ._ � . . . - ' .. - � . " . . . ' . . .. . . ' _- ,,e: . "-� �'� � They come strictly within the the definition of ' crimes or criminal offences . ' The terms ' crime, ` 'offence, ' and ' criminal offence' are all synonymous , and ordinarily used interchangeably, and include any breach of law established for the protection of the public, as distinguished from an infringement of inere private rights , for which a .. penalty is imposed or punishment inflicted in any judicial proceeding . �� %'� ^ A municipaZ ordinance is as much a Zaw for the protection of the public as is a criminaZ statute of the state, the only difference being that the one is designed for the protection of the municipality and the other , for the protection of the rah.ole state, and in both cases - alike the punishment is ir.iposed for the violation of a public law. If the st2te itself, directly, shouid make the act an offence, and prescribe the punishment, there could be no question but that the act would be a ' crime' and the prosecution of it a 'criminal prosecution, ' within Che meaning of the constitution; and how can it make any � differ•ence, - either in the intrinsic nature of the thing or - in the consequences� to tke accused, whether the state does this:- itself, or- delegates the power to pass the �law to the municipal authorities?" Eltalics supplied.) . : � A more recent case involving a St. Paul ordinance in which "..Justice ICelly wrote �the opinion of the Supreme Court is City - . , _ of St. Paul v. �Jhidby, 295 P�inn. 129 , 203 N.W. (2d) 823 (1972) . In Whidby the Court made a detailed analyis of punitive ordinances . and deterr.iined where violation of a municipal ordinance could � result in the penalty of incarceration a defendant was presumed innocent until the contrary was proved and in case of a reasonable doubt was entitled to acquital and that the Rules of Criminal � . Procedure should apply rather than the Rules of Civil Procedure. The Court stated the basic question before them to be: "Whether - a judicial proceeding which may result in the accused' s incarcer- ation for 90 days is civil or whether it is criminal." The Court' s �aell-reasoned clecision determined that such a proceeding was criminal and stated: . ' - ". . .To characterize such proceedings as civil or sui generis . is nothing more than a historical fiction. Any citizen imprisoned for violation of a city ordinance w�uld be incredulous if informed that he �oas not experiencing a criminal sanction. "the City of St. Paul argues that ordinance violatiotts are not crimes because they are not proscribed by the state of Minnesota. rlunicipal corporations are created by state _ law. See, e.g. , Minn. St . 410.04. Their legislative ri-5 - .: . :�:. ...�� .......�_ , .,:- . ,��„��. . ` ,;: .. .- - ,: � : • : � - :�-.•- �. '^1��..�j!�'��i�/�'�q`�'`+.r!S!L��'��' �� P4_�.� � � ♦ t^.'4i�'�i'� - ,Qi1. . .��.r'!'�� y �/'� `ry�� '� � =�"�— ��\ � . � - � � t �l ,.,}t�'�� '� �� y�� .�� ?_ _ _.,...i�Y..:'�.�ti�_*^w.��"r��V . __.'1JLj `�.t-�."F{�.'�'..e.f'�-�'�� .I:Y»�'�5�+��r+��. '✓ra ...�_ r`w�'i'"/�.�aK�u�T��'l^' � . . , ,_ - , authority is conferred upon them by the constitution and � the iaws ot tne staLe, a�id, ' as to matters ot municipal concern they have all the legislative power possessed by the legislature of the state, save as such power is ex- pressly or impliedly withheld . ` Park v. City of Duluth, 134 Minn. 296, 298, 159 N.�,T. 627, 628 (1916) . The fact that certain acts are proscribed by ordinances enacted by a municipal corporation in its legislative capacity rather than by state criminal statutes makes them no less criminal in nature . " . � In t•,Thidby (supra) the Court quoted pertinent language from State v. Paulick, 277 rlinn. 140, 150, 151 N .td. (2d) 591, 598 (1967) which was concerned with the issuance of arrest caarrantsc " 'It. is clear that there is no magic in the designation of a crime as a misdemeanor, gross misdemeanor, or felony. � We must look- to the consequences of conviction of crime � rather than the classification. The impact on an accused who .suffers loss of �liberty by incarceration in a penal institution is the same no matter how the crime of which he .was convicted was classified. "' A portion of footnote No. 1 in Whidby commencing on Page . � - 132 of the Minnesota citation states : . . . � - ". . .Periodically, this court has termed raunicipal viol.ations � as 'crimes' synonymous witti violations of state statutes`.' . (citing cases) . - �In State v. White, 300 Minn. 99, 102, 219 N .�1. (2d) 89 (1974) � � the Court quoted from �Jhidby (supra) : ' "'The conclusion is _ inescapable that under the State and � I�ederal Constitutions we can no longer draw a rational � distinction betweeri arrest made for misdemeanors and those made for felonies . The impact on the individual is merely - a matter of degree . "' � and tlzen went on to say: . "In the case at bar it is undisputed that violation of the municipal ordinance pro�iibiting unlawful display of a - driver' s license carried a potential penalty of incarcera- tion. There fore the statement made in tJhidby is applicable here. " - _.- The Court again adopted language from Whidby in Smith v. _ State, 301 Minn. 455, 457, 223 N.td. (2d) 775 (1974) in this language: M-6 � � . ..-�,-- ____ . � - . , . .. , �,.:, .:. r �. � `f� ;::. _ ��.`t►��3...?1T y��. �t�� . _ , , - . . .r ��' �'�'►-y�y��yr�'/� 1t'Y +L �� J^ R ��`� Y�� tiF.'"'"/�r�'� �'�LT�� . i�iwAy�F~ry:� L.J..�� .� .�J.'i �•y`1'_• �J/ y{'r�./�/�"1��L.�.''�"}�Mt��1(AT'/4'S .�.— _. 1�. ,a,a.�� . ♦ T�t � � ��"��s�A��.�f ' �K `�- �.� . }1`) 1�1A.. . - ;*,..a�ry 5,.��T��-�•��f.rts,''� .,1,�.��d f.'tv,�,r�+r'`��/��'.�+ti,+�,�'y;�' '�,�;';y;,Y-3'�t�"4�'�� `'�M '-!'�_�'~''t'�'�. �'\'�a��S . . . . •r �.. 2� r' " .i •..' . •,.,��r ,e'Y�C:,' :. � _,�,,,,,�r Y-2 ' "".r ..� � ��+JLt�a,�y. ' . - _: � - , .._._ . . w�.;,: r , ,., .,. . .. . 7:.. . . . � . ' .. . ._ . . . ... ... �.... -�. . . x � .�..>9 nc'Y�3t��_'^�..» . ` " .. _ _ . . .r _ �. x...w .. ..r_. .�' .�_..... . "_— '�';''_1"ei " �F,L.' xdc3'..� _ • , ,, . , - . "The state contends that the postconviction remedy statute � . -� is not available to one convicted of a violation of a municipal ordinance . The state ar�ues that an ordinance violation is noL a crime. �de do n_o��C a re_e. As we stated in City o St . Pau v. W i y, 5 Minn. 129 , 136, 203 N.�J. 2d 823, 827 (1972) : '��' -� %� Any citizen imprisoned for violation of a city ordinance would be incredulous if informed that he was not experiencing a criminal sanction . - '%� %'� %'� The fact that certain acts are proscribed by ordinances enacted by a municipal corporation in its legis- lative capacity rather than by state criminal statutes makes . them no less criminal in nature. "' (Underlining supplied.) It is true that in City of St . Paul v. Dibucci, 304 Minn. _ 97, 229 N .W. (2d) 507 (1975) the Court determined that a prior conviction for a.violation of municipal ordinance was not convic- tion of a crime _within Minn. State 595. 07 permitting a prior conviction to be used to effect the wei�ht of the defendant' s testirnony as a caitness. However, the Court there stated: - "As a matter of sound publ2c policy, and in the interest of justice, we believe that the conviction of an ordinanc� �- violation should not follow a defendant through future litigation in which he r,tay be a party or a witness . Ordinance violations generally involve petty offenses, with penalties less serious than statutory violations ; it is reasonable to assuc*ie, therefore, that defendants more readily plead guilty to such char�es and are less likely to fu11y exercise their rights, including the right to � appeal . This , inturn, leads to the 'conclusion that convic- tions of ordinance violations, because of the nature of the offenses involved, may be of doubtful reliability as evidence of the credibility of a witness and that their. prejudicial effect upon� a jury may therefore outweigh their probative value . " While the Dibucci decision is strictly limited to the matter oF impeachment by prior ordinance violation, nonetheless it was subject to the strong dissent by Justice Scott and joined in by Justices Peterson and Kelly, wherein the thesis of the Court was : 'This court has steadily moved toward equality with regard � to the rights of the accused in all criminal proceedings , . . . " i�i-7 ,..._---- - � . � - . �, . .� � .:.:- . � . -. �-:.:_ _ r-y��.i- �"� •� -�..��f''�:�::�'�`r''-.;�:�.��.�'��,,.�-r?"'A7��. � :�=.:--..�j�" — �c�`r-r+�ri�.r. . . `_.�z ,_ ,�,,�+,,-� �. �- ,�'"".�y� � � � -s"rir'- _ '?+v��'.1.''.1��,L^A+.+ _��qr��m"S�'�.'ti.^-.�.s�.,'YF�,��.r��?`�X"�'�+.� :* �K7,�. ~��`ti T f' v_: .-�.l1is -. �c. �. .t►• if___ -�"'� ..,.., , . . . �.. ' .-:. - . - :. ,. :. +� .; , � . . -.x. ThLs Court beliPl�es t,�at �he trend in ;-his staCe tow�r� - treating ordinance violations as crimes for a11 reasonable purposes is fundamentally sound and one which advances the interest of justice. Accordingly, this Court has now determined that an ordinance violation is a crime within the purview of Section 5 of Nlinn. Stat. 626. 07 authorizing the issuance of search warrants for evidence which tends to show a crime has been committed or tends to show a particular person has committed . a crime. _ _ � _ - r - . A second challenge nade to the validity of the search warrants . ..�. . . . �. . . . . _ here by plaintiff` is that the application for the warrants and the affidavits submit�ed in support of such application are : insufficient ;to demonstrate probable cause to believe that the items .sought constituted evidence that a crime has been committed or that any particular persons had committed a crime. - It '�hould first be noted that we are not here concerned with � materials alleged to be obscene. Therefore, cases relating to seizure of obscene materials are, for the most part, not applic- able. The aff idavits made in support of the applications for search warrants are based,. in part, on interviews with one Talarico. who stated in general that he was employed by the plaintiffs in the operation and management of certain bookstores in St. Paul and " that specif ically: "4. During the time r1r . Talarico worked at the bookstores _,F he observed rerris J. and/or Edward J. Alexander come to the ~ = St. Paul bookstores each week and collect money and lists from the cash register and bring in 'adult ' books which would be put up for sale. � � r�-s � --� � + . _ - - _ . . .t . - . . . ., - . .. . - -- _ - 4� Y ' ' t J 1�:`r\�:�. ' a t' r ' '"1:,x';L �t,r.,s.�.i-•;i,�,s.a�.Y. �.T�� . !Va_-q.'�.•� a•{`�'_�t _i, ,��` �.f .��i'�� I•�'/'��ti f+�w'�'S:"�•i � ^� ♦ i �.. 4• a � . 'T,��, . .I_ �.w"ry�•,�Y t."1\�'. - f'. . �-y � s- �` ' �y��1M ♦ r�"qA '�4; �5�� ,�,1�'_.,��;�,��-��j:�_`�' �,.�,r�3Y��+.yw...-•��„•+ •�., y.'�:�.,;�;�,�,�,�'�,,,•,.t,y,,,,,;'+��-'K'y„��,,��`y�y.�:,��•�'�Y'�'• �''�`„� � ..._1�+ _ti3.+!_"'-.� /_ ..��.�'�1.•_!";:a,�.r.•�t,..-._ ..-dS!+�_��+��.-,.s��', � �-i..�_.-�+--N..i�x-._�:t.�,-lt�..��,r,�,��•.4l-��s�J+i'1� ..�;'`._ .� ...n�__. '__ ... . . . . . � . � . . :i�: L : ' . _ .. . . . . - ' . �� . ... ... . .. . . � _ . . w• ' �. . � " . . � � • . . . . �.�(ti- ..� . . . : �� " � � � . � "5 . Ferris J. Alexander, Sr , instructeu Talaric:. �hat if he �vere• arrested or any other employee arrested for the sale of obscene books, Talarico was to call attorney Randall Tigue and inForm him of teh arrest . Ferris J . Alexander, Sr. stated that he would pay the legal expenses incurred in the defense of the charges of sale of obscene books and also - pay the f ines if any. " The Court ' s determination of probable cause to believe that the iter,is souoht under the warrants constit!�ted any evidence which tended to show a crime had been committed or tended to shoca that a particular person has committed a crime is substantially based upon the above-quoted paragraphs 4 & 5 of the affidavits . The � fact that the plaintiffs would bring in �.'adult" books for sale - , - , � and that_one of the plai.ntiffs infoxmed Talarico that if any � employee was� arrested �for the .sale of obscene books, plaintiffs � would pay le�al expenses and any fines indicated to this Court � that there was a recognition by the plaintiffs that at Ieast � some of the books could be determined in a court proceedin� to be obscene. . . . We are not here faced with the situation in Lee Art Theatre, Inc. v. Virginia, 392 U.S. b36, 88 S.Ct . 2103, 20 L.Ed. 2d I3I3 (1968) where a police officer' s assertion that he had determined from personal observation of certain films and of the billboard in front of the theater that the films were obscene was found to be an insufficient basis for the issuance of a search warrant for such f ilms . In that case the Court indicated that an inquiry should have been made by the justice of peace into .the.�factual basis for the off icer' s conclusions . In that case the accuser was _ in fact making the conclusion that the items sought to be seized was obscene. In the instant case it is the accused-- the person who is the alleged o��rner and distributor and the one ��ho prof its from the sale of such items, who is making the concZusion that the items could be determined to be obscene. M-9 . -- ------.- -- -- -_�--- . �_ . � . , . . , : _ � � � �- - . . � . . -- . - � _ :� - '�?i�'-(��r��'��/�;•.;-�Y'r�./'..��^�`!t�,`�'':a.r��f� �� '.r.:..r ��-�.�.-.i;�• .y,��r.��ri 1"��`x'~'�'�.-�O,'��"''�,,�'��j'�w0!•�� a'. �,"�� ,�,,�,� . . ;�� .—•. , � `': ..r��.r'�G,,N�": Y�. ,.�g,�'�M-,S,�-�+•,�•...;-r s .— • . ' _ .. .,,..�; 'v'-"?`�'✓�.�+._ 'M-'��'-�'{'vr!'tS.+��''/�f.`'�'i`' .,�'�z"�:t y��tii1"{��'.�`i.��_S.3 f. `+„"'ry!�,�e,,"3y��- r+ ,�.,� .C'.r�^a►t�:•�'�' :� ?.• ._J 1 _ _ _l f_. '�YR�P �J s^/ _ . .♦ i._'�'V• 11L /T��yY�:4�/]�_ . _ '. ` • . � The Court here concludes tna� the appiications and affidavits in support thereof a�re sufficient to provide probable cause for the issuance oF the warrants . The plaintiffs ' third ground for their assertion that the search warrants are invalid is that the warrants are "general" warrants in violation of the Fourth and Fourteenth Amendments . � of the United States Consitutiton. In reply to that- contention the Court adopts the argument set forth by defendant in its , _ brief filed herein: ` � "We agree that the search warrant must sufficiently describe the items . to be seized so as to avoid �eneral searches. See Marion v. United States, 275 U.S . 192, 196 48 S . Ct. � 14, 7 L.E _ 3 7 . • However, the plaintiffs ' reliance � upon. Stanford v. texas, 379 U. S . 476, 85 S . � Ct . SOo, 13 L. �d. d l,. reh. denied 380 U. S. 926, 85 S. Ct. $79, � ° 13 L.Ed. 813 (1965) , is clearly erroneous . :Zn Stanford v. Texas, the search warrant authorized the seizure of books, records, pamphlets, cards , receipts, lists, memoranda, pictures, recordings , and other written _ instruments concerning the Communitst Party in Texas . . . ' . . The officers seized 2, 000 books, pamphlets and gapers . I10 records of the Communist Party were found. "The Court, having given great attention to the historical basis for the Fourth Amendment, found the language of the• warrant constitutionally unacceptable . Tlie Court said, ' In short, what this history indispensably teaches is that the constitutic►nal requirement that ��arrants r.lust particularly describe the ' things to be seized' is- to be accorded the most scrupulous exactitude wh�n ' things ` are books , and the basis for their seizure is the ideas which they contain. See t�larcus v. Search Warrant, 3 7 U.S .� 717, 6 L.Ed. 2d 1127, 81 S ; Ct . 1708; A uantit� of Books v. Kansas, 378 U.S . 205 , 12 L. �d. , S . Ct. 723 . I10 less a standard could be faithful to First Amendment freedoms . The constitutional impossibility of leaving the protection of those freedoms to tlle whim of the officers charged coith executing the .. warrant is dramatically underscored by wliat the afficers � saw fit to seize under the cvarrant in this case. ' (Emphasis added) . "A footnote to this paragraph says, 'The word ' books ' in the context of a�hrase like Tbooks and records has, of course, a quite different meaning. A book which is no more than a ledger o rI-10 � .� .. . �:� .. �_. . � � . � . - , ..... -- , �^'='`;T-•..wt5+��,,.�,,�,:w"y"R7�..�►,,,,�•:'r �,*/�'� J{��.].s:U.,� "�:�.�'i:""^�y+'yw-��"'°""'"."' ��y��T••.L�Q:;��."t'%"'.�`�".�'��r".r'-�4m,r �j��(� ��•��y�y� �+'�^ '��. -r .�O✓1��"Y'r��(��.�i��i W�?'��y� •�4��`�'�'�"Ti...1.�iC.1.L�_ � �/I �%',•y^-!• � `�•� _r . , . •• � � _ � a« unlawful enterprise thus rnight stand on a quite � different constitutional footing from the books involved in the present case . ' (Emphasis added) . "It is clear th�t the decision is based upon the nature of the material sei:zed rather than its description in the warrant . In the instant case, the searc�lcaarrant authorized the seizure of 'Business records relatin� to the operation and o�,mership of adult bookstores ' at several locations . It was , therefore, specific as to the types of records , i.e. business , and �ahich records , i .e. relating to the ownership _ and operation of certain bookstores . "The warrant can only be as specific as the nature of the materials sought will allow. James v. United States , 416 F.2d 467 (5th Cir. 1969) . In State v, Ruu , Minn. , N .W. 2d (filed October 2 , 1977 the defend- ants claimed that the warrant was vague and general because ��' it included every conceivable business and cost related accounting record of the business . The court held that the warrant was valid, noting that the time and expe�tise necessary to execute the :warrant may be considered. " It is on the basis o�; the foregoing material that the Court has made its attached Order. . Amdahl; J . M-11 .— � -- � .., _ , Y . .. - �. . ; - � �,- .�'� ' ^- ,.'( `�"C�`t'�'.:.�•�-_;,�,,; wNr�!�,:�••.+�„':��`'.c'i'�'"•i`t;'��"�'T�ti'�+'"��fj��;��::�T..`'�'a:�'c ...� •�,^.l�.""S�1�s,•,,,�?i_. r. '� .t��Y'�S �i�+�T�• rt::�..•!..�, .,._ � :�.� -� � .�,��r S ;— t � y� �-r "�'"+`APr. eT'•>� '.s � _'��"�' �".�`i��f��/!Y._.�„y�T7r 1 r,�?.filw,y'�`+,'�5.�1.� �,i� ��`,:�"+rtLr'+7'��J'�,�"-�:j Y 91�}'i':J 7-�T."t��`��',•'!�+"�►�+ol,r-sV�,�` _ . '_ �Cr t.'.r!. ._ _ _ ' .� . ._. _`C. -. __ _ . . . . _+�'1�..f'• r _ ��"i�Y _. . �`,rt'{. .