Appeal from the Circuit Court of Kendall County; the Hon.
Wilson Burnell, Judge, presiding.
JUSTICE STROUSE DELIVERED THE OPINION OF THE COURT:
Defendant, Frank Patroff, was charged in a four-count complaint with the offense of obscenity (Ill. Rev. Stat. 1983, ch. 38, par. 11-20(a)(1)) for the sale of four allegedly obscene magazines. Following a jury trial, defendant was found guilty and ordered to pay a fine of $910, plus costs. Defendant appeals.
On June 27, 1983, at approximately 10:30 a.m. Tim McCann, a deputy sheriff for the Kendall County sheriff and an investigator for the Kendall County State's Attorney's office, went to the Denmark Bookstore located at 1300 Business Route 30 in Aurora. The Denmark Bookstore was located in a two-story building, with the commercial premises on the first floor, and an apartment on the second. On the outside of the store were signs which indicated that a 50-cent browsing fee was required, and that a person must be 18 years of age to enter the store. Inside the store was a counter with a cash register and merchandise for sale. Around the walls of a large room there were racks with a large number of magazines, and in the center of the room there were also racks and tables containing magazines and paperback books. There were perhaps 1,000 magazines and at least 100 paperback books located within this room, as well as motion picture films and video tapes.
McCann, who was accompanied by three other individuals, approached the counter, saw the defendant, and paid him $2 for browsing fees. The defendant gave him receipts for the browsing fees. McCann and the other individuals then walked around the store looking at magazines. On the right-hand wall McCann focused upon four magazines in the middle of the wall, picked them up one at a time, and dictated a description of an excerpt from each of the magazines into a hand-held tape recorder. The defendant then approached McCann and asked him to leave and offered to refund the browsing fees.
McCann thereafter returned to the Kendall County courthouse, where a complaint for search warrant and supporting affidavit were prepared. The affidavit described McCann's law enforcement authority as well as the location of Denmark Bookstore, and indicated that on June 27 he had entered the bookstore and inspected magazines that were on display, including magazines identified by content on an attached exhibit B, which recited:
"Magazine entitled Wild Trio, number 307. Cover of said magazine depicting one male without pants lying supine with his penis inserted into a female subject vagina, while a second female licks the vaginal area of the first female.
On page 8 of said magazine, one male subject lying supine with his penis inserted into the vagina of the first female with the second female was [sic] licking the vaginal area of the first female. On the following pages, the photographs of a female subject lying on a couch while a male subject inserts his penis into the first female vagina, while a second female subject licks the testicles of the male.
Magazine entitled Fuck Highway, number 1. Cover of said magazine depicting the penis of a male subject being inserted into the anus of a female while said female holds her fingers in her vaginal area. On the third page of said magazine, photograph of a male subject in the front seat of a car who is kissing a female subject while a second female subject inserts the penis of the male subject into her mouth with the first female subject having her breast and her panties exposed.
Magazine entitled Funky Girls, number 1, `MGN.' Cover of said magazine depicting the insertion of a tan prostheltic [sic] device into the vaginal area of a female. Sixth page of said magazine depicting one female subject lying on a blanket, while a second female subject inserts her tongue into the vagina of the first female, one female having her nude breast exposed. Eighteenth page of said magazine showing the female licking the anus of a second female while the first female holds the lips of the first females [sic] vagina open.
Magazine entitled Titans, `Bullet Productions.' Cover of said magazine depicting one male subject lying supine while a second naked male subject has inserted the penis of the first male subject into his mouth while a third male subject inserts his penis anally into the second male subject."
The complaint for search warrant sought authority to seize the magazines described in exhibit B.
Deputy McCann took the search warrant documents to Judge James Wilson in Aurora, who reviewed the documents and issued a search warrant calling for the seizure of the four magazines. Later that same day, McCann returned to the Denmark Bookstore and executed the search warrant, taking into his possession four magazines entitled "Wild Trio," "Fuck Highway," "Funky Girls," and "Titans." On June 28, 1983, a criminal complaint charging defendant with obscenity was filed, and defendant was arrested and released on bond. An amended complaint was subsequently filed charging one count of obscenity for each of the four magazines.
Following a jury trial in which Deputy McCann was the sole witness, defendant was found guilty of all four counts. His post-trial motion was denied, and he was ordered to pay a fine of $910, plus costs.
Defendant first contends that the affidavit for the search warrant was insufficient to provide probable cause for a finding that the magazines were obscene. Essentially, defendant argues that the judge could not possibly make a determination of probable cause because the affidavit provided him with only a "brief and excerpted description of sex acts" ...