NCJ Number
38474
Journal
Harvard Law Review Volume: 90 Issue: 2 Dated: (DECEMBER 1976) Pages: 463-472
Date Published
1976
Length
10 pages
Annotation
REVIEW OF TWO RECENT FEDERAL COURT OPINIONS RULING UPON THE ADMISSIBILITY OF OBSCENE BOOKS AND MAGAZINES ORIGINALLY DISCOVERED IN A PRIVATE SEARCH.
Abstract
IN US V KELLY (1976) AND US V SHERWIN (1976) THE EIGHTH AND NINTH CIRCUIT COURTS REACHED OPPOSITE CONCLUSIONS ON APPARENTLY SIMILAR FACTS. IN BOTH KELLY AND SHERWIN, AN EMPLOYEE OF AN INTERSTATE SHIPPING COMPANY DISCOVERED OBSCENE LITRATURE WHILE ROUTINELY INSPECTING THE CONTENTS OF DAMAGED CARTONS EN ROUTE TO A LOCAL ADULT BOOKSTORE. IN EACH CASE THE EMPLOYEE CONTACTED THE FBI AND VOLUNTARILY TURNED OVER COPIES OF THE BOOKS OR MAGAZINES TO THE GOVERNMENT. IN KELLY, THE DEFENDANT WAS CONVICTED AT A TRIAL IN WHICH THE BOOKS AND MAGAZINE WERE INTRODUCED OVER HIS OBJECTION WHILE THE DISTRICT COURT GRANTED THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE. THE RULING OF EACH COURT WAS REVERSED ON APPEAL. THE AUTHOR REVIEWS THE COURTS' OPINIONS AND CONCLUDES THAT THE WARRANTLESS ACQUISITION OF PRIVATELY DISCOVERED EVIDENCE IN BOTH KELLY AND SHERWIN APPEARS TO HAVE BEEN UNCONSTITUTIONAL.