This is admittedly a radical scenario — although it's by no means exceptional. A police raid could be anywhere between the situation just described and a simple citation handed to you by a single officer. But the dynamics are the same, and the way you behave during the episode will determine how much or how little misery awaits you down the line.
XBIZ talked with two prominent attorneys with years of experience defending adult retailers — Chicago-based Joe Obenberger and Orlando-based Lawrence Walters of Weston, Garrou, DeWitt & Walters — and asked them to give us a list of basic dos and don'ts if your store becomes the target of a police raid. We've formed their revelations into a basic survival guide for the adult retailer.
Keep quiet. "In the words of my father," recalls Obenberger, "who was not a lawyer and not even college educated, but a very wise man, 'Joe, nobody ever got hanged for anything they didn't say.' The only power a criminal defendant has is the right to silence. This isn't the movies, so you're not going to talk your way out of it. If by chance you say anything that turns out not to be true, they're going to assume that you lied to them, and there are more people going to jail lately for obstruction of justice for lying than for substantive offenses. So keep your mouth shut."
Walters agrees. "We usually advise clients to make no statements whatsoever to law enforcement," he says, adding that the first person you should talk to is your lawyer. "Make sure a lawyer is involved from the beginning if a raid goes down, and be nice and courteous and don't interfere with anything the police are doing."
Know what the police can and cannot do. "In a public establishment, the police can certainly enter the premises without a warrant," Walters says. "If police view crimes occurring on the premises, then they can make an arrest. If there's a search warrant, the police can take what's listed in the search warrant, but there are some 1st Amendment restraints to what they can do — like when they come in and just clear out the store. But the best time to assert your rights is not [at that moment]. You can't tell an officer, 'Hey, you can't take all my merchandise.' That will land you in jail for interfering with an officer in the performance of duty, when you might have only been fined if you'd just let him alone.
"Obscenity is considered to be contraband, just like drugs or automatic weapons, and the government has broad rights and laws to be able to deal with contraband in very harsh ways. They can make life extremely miserable and upsetting to the business. But law enforcement is not allowed to use undue force. They're allowed to arrest people who commit crimes in their presence. They are allowed to question witnesses, but witnesses have the right to remain silent. And they are allowed to seize contraband that is apparent, even if they have a search warrant that only lists a few items.
"In general, you're allowed to have a copy of the inventory seized under the search warrant. They generally give you a receipt for all items seized. But not all states allow you to receive a copy of the search warrant at the scene, so demanding [a list] might get you into trouble. Demanding to see a policeman's identification also may get you into trouble because not all states grant you that right."
Know your adversary. "Cops are not well trained in obscenity," Obenberger says, "because it not a high-priority crime in any part of the country. So the first thing to do is assess how knowledgeable the officer is. Is it a cop doing this [raiding] on his own because he doesn't know any better? Every once in a while, an officer turns cowboy, and a lone-wolf cop bust is going to be treated a lot differently by the prosecutors."
Arrested employees are not always on your side. "Often the store's attorney will be able to coordinate counsel for both the store owner and the arrested employee," Walters says. "But employees often make the mistake of thinking that if there's a lawyer for the store, automatically there's a lawyer for all of them. Often there's a conflict of interest because the employees have to make a decision at some point whether to give a statement to law enforcement and whether to cooperate, and that decision may be at odds with what the owner wants."
Avoid attention. "There are ways to make yourself less attractive for law enforcement," Walters says. "It's just a matter of not making enemies. Law enforcement can always come up with something in these stores and take it to a judge and see what the jury says. The reason why they do that is not because you're selling a movie they don't like but because you've come to their attention in some way. Maybe it's an ex-employee that complained about you, or you didn't keep your fire extinguisher filled, but then you're on their radar screen and they start to look at other things you're doing. Don't give them a reason to visit. Over-comply with government regulations, make friends with law enforcement, do charity work, and make sure you are a good corporate citizen in the community."
Hope for the best, but prepare for the worst. "Expecting the worst means having a bail bondsman available," Walters warns, "and making sure you have a good relationship with the bondsman. That way you can ensure that you're quickly able to get out of jail if there's an arrest. We've had clients who spend three or four days in jail trying to locate a bondsman and get signatures on documents, which is not easy to do when you're incarcerated. We've found that detainees in high-profile obscenity cases are treated much differently. Attorneys sometimes have trouble getting access to them, and they are put in protective custody for dubious reasons. It can be difficult to communicate when you're on the inside, so it makes sense to have things planned out in advance.
"Also form a relationship with a private investigator in the local area. If you have a criminal problem, it's easier to have somebody who knows you and is already on retainer, and there are things private investigators can do in terms of analyzing the current community standards. They can take a sampling of what's available in the area in terms of explicit material and develop reports that can be used in court to establish what the community standards are.
"But the best advice of all is retain good lawyers who know what they're doing."
