APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN W. NIELSEN, Judge, presiding.
MR. JUSTICE BOYLE DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 6, 1978.
The defendants, George Robert Hobbs, Shawnee L. Elmore, Michael G. Milazzo, and Jacqueline D. Davis, were convicted of obscenity in Winnebago County following jury trials, pursuant to the showing of films at two adult bookstores in Rockford, Illinois, on February 27, 1976. Each defendant was sentenced to 90 days in jail and fined $1,000 on his or her conviction.
The defendants' cases have been consolidated on appeal, and four issues are presented for review: (1) Whether the searches and seizures conducted at these two bookstores were constitutionally permissible; (2) Whether section 11-20 of the Criminal Code of 1961 (hereinafter referred to as the Illinois Obscenity Statute) (Ill. Rev. Stat. 1975, ch. 38, par. 11-20) is constitutional; (3) Whether a jury instruction which was given over the defense's objection was proper; and (4) Whether the trial court abused its discretion in sentencing the defendants. After a review of the record and briefs, we find defendants' contentions to be without merit, and we affirm the judgments of the circuit court of Winnebago County.
On appeal no significant questions are raised concerning the testimony and events at the two trials, other than the procedures surrounding the searches and seizures of the concerned films, objections to which were raised anew by pretrial, trial and post-trial motions. Accordingly, to the extent possible, only the relevant details of the pretrial motions and events, as well as the sentencing data, will be treated in this opinion.
The following facts relate to the arrests of the defendants, Hobbs, Elmore and Milazzo. On February 26, 1976, at 3 p.m., Richard Galvanoni, a Rockford police officer, entered an adult bookstore at 322 East State Street, Rockford, Illinois, to view some films in booths located in the rear premises. He obtained $3 worth of quarters from the girl behind the counter defendant Elmore and used these quarters to activate coin-operated movie projectors whereby he watched two films in their entirety one being denominated "California Dreaming" and the other "Sweethearts." On February 27, 1976, at 12:30 p.m., he returned to this same bookstore, purchased various magazines, and was again waited on by defendant Elmore. Later that day, at approximately 2 p.m., Officer Galvanoni appeared before Associate Judge John W. Nielsen and executed a complaint and affidavit for a search warrant. The complaint recited the location of the store and the particular items which might constitute evidence of the offense of obscenity, specifically the two aforementioned films. Officer Galvanoni's affidavit recited his activities on February 26, 1976, and then continued as follows:
"That the projector in booth #1 contained a film entitled `California Dreaming', and that film contained the following sexually explicit depictions: This movie uses three nude males as actors. One scene shows two of the males simultaneously committing fellatio upon each other. Another scene depicts one of the males inserting his penis into a second male's anus. As that happens the third male places his penis in the mouth of the male whose penis is in the third male's anus. The three men change positions within this particular sexual arrangement. Near the end of the film the camera explicitly shows all three men ejaculating together after first withdrawing their penises from the assorted orifices mentioned.
That the projector in booth #11 contained a film entitled `Sweethearts' and that film contained the following sexually explicit depictions:
The movie begins with two clothed females unzipping the pants of and licking the penis of a prone, clothed male. The next scene shows all three participants nude and the male is simultaneously having vaginal intercourse with one girl while committing an act of cunnilingus upon the other girl. The participants change positions a number of times and one subsequent scene depicts the man having vaginal intercourse with one girl as that girl performs an act of cunnilingus upon the other female. Near the end of the film the camera shows the man ejaculating semen and then the two girls are shown licking the semen off his penis.
That neither of the two films described above had a sound track and neither had any apparent literary, artistic, political or scientific significance, * * *."
On the basis of Officer Galvanoni's complaint and affidavit, Judge Nielsen issued a search warrant which ordered that the two films, "California Dreaming" and "Sweethearts," be seized from their booths.
At approximately 2:30 p.m. on February 27, 1976, Officer Galvanoni and other Rockford officers executed the search warrant at the above premises and seized the two films specified in the warrant. In addition, the officers also seized cash, numerous business records, four film description cards, two billboards and one film, "Hot Dog," taken from the suitcase of defendant Milazzo. At this time Hobbs, Milazzo and Elmore were arrested. Hobbs and Milazzo were charged with obscenity in regard to the two films, while Elmore was similarly charged on the basis of magazines. Subsequently Elmore was charged by information with exhibiting the films. Two other persons were also arrested at this time on obscenity charges.
The following facts relate to the arrest of defendant Davis. On February 26, 1976, Officer Richard Beishir, at approximately 3:30 p.m., entered "The Hollywood Art Store," an adult bookstore at 615 Seventh Street, Rockford, Illinois. Officer Beishir was in the store for an hour and spent approximately $6 to view certain films, including two films in their entirety "Rape of the Waitress" and "no known title but stars Tina Russell." Jacqueline Davis was the clerk on duty on this date and when Officer Beishir returned the next day at 12:30 p.m. to view the same films.
At approximately 2 p.m. on February 27, 1976, Officer Beishir appeared before Judge Nielsen and executed a complaint for a search warrant and supporting affidavit. This complaint for a search warrant was virtually the same as that of Officer Galvanoni, except as to the address, booth numbers and specific titles of the two films, "Rape of the Waitress" and "no known title but stars Tina Russell." Likewise, Officer Beishir's affidavit was for all practical purposes identical to that of Officer Galvanoni, except as to the time and place of his observing these films and the booth numbers. The summary of the sexually graphic depictions of each film in ...