Commonwealth v. Polak

¶1Concurring Opinion

¶2I quite agree that the subpoena duces tecum was of doubtful validity, but I cannot base my decision on that factor alone.

¶3Much of the difficulty involved in this case stems from the fact that the films, as communicatory embodiments, enjoy the protection of the first amendment. Because of the first amendment problems involved in the seizure of allegedly obscene communicatory embodiments, the Supreme Court of the United States has held that such materials cannot be seized without a prior adversary hearing being held on the issue of their obscenity. A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723 (1964). However, the first amendment is not the sole restraint on the Commonwealth’s behavior in this case, and I believe that the fourth and fifth amendments forbid the procedure attempted here.1

¶4*70Absent exceptional circumstances, tbe fourth amendment requires that material may be seized only pursuant to a warrant issued upon a showing of probable cause. Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776 (1961); United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430 (1950). The subpoena procedure attempted in this case works a patent violation of this restriction. No probable cause was established or even alleged, yet Polak was ordered to produce, for court scrutiny, films in his possession. If this procedure is legitimate then, by analogy, a court could order an individual to produce for court and prosecution inspection, without probable cause, a weapon which was suspected of having been used in the commission of a crime. This is simply constitutionally impermissible.

¶5The fifth amendment is also applicable to this case. It is true that the fifth amendment privilege “protects an accused only from being compelled to testify against himself, or otherwise provide the state with evidence of a testimonial or communicative nature. . . .” Schmerber v. California, 384 U.S. 757, 761, 86 S. Ct. 1826, 1830 (1966). But in the instant case it is the very act of producing the requested films that would provide the Commonwealth with evidence of a testimonial or communicative nature. Through the compelled production of these films Polak would in fact be giving testimony as to their ownership and origin.2 “Unquestionably, the privilege against self-incrimination properly affords protection in subpoena situations. The testimonial utterances implicit in the production of documents is the accused’s ‘assurance compelled as an incident of process that the articles produced are the ones demanded.’ Unlike the actual search and seizure cases, the individual is therefore compelled to offer ‘testimonial evidence’ *71against himself.” Comment, “The Fourth and Fifth Amendments—Dimensions of an ‘Intimate Relationship,’” 13 U.C.L.A. L. Rev. 857, 868 (1966).3

¶6“ ‘Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself. . . .’ United States v. Burr (In re Willie), 25 Fed. Cas. 38, 40 (No. 14, 692e) (C.C.D. Va. 1807). (Emphasis supplied.)” Hoffa v. United States, 385 U.S. 293, 304, 87 S. Ct. 408, 414 (1966).

¶7The potential threat to constitutionally protected communications posed by an obscenity prosecution amply justifies the somewhat more jealous protection afforded such material. “ … [T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. … The separation of legitimate from illegitimate speech calls for … sensitive tools ….’ Speiser v. Randall, 357 U.S. 513, 525, 78 S. Ct. 1332, 1342, 2 L. Ed. 2d 1460. It follows that, under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity as here involved without regard to the possible consequences for constitutionally protected speech.” Marcus v. Search Warrants of Property at 104 East Tenth Street, Kansas City, Missouri, 367 U.S. 717, 731, 81 S. Ct. 1708, 1716 (1961).