THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Thursday, May 25, 1995 TAG: 9505250478
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY JOE JACKSON AND JUNE ARNEY, STAFF WRITERS
DATELINE: VIRGINIA BEACH LENGTH: Long : 101 lines
Obscenity charges against a store owner indicted last year on charges of sexual aids were dismissed Wednesday after a judge ruled that police conducted an illegal search of the store.
In September, a grand jury indicted Pamela O'Berry Adams - owner of Tara Thunder on Atlantic Avenue - on charges of selling items. Tara Thunder was one of six businesses from which police seized sexual paraphernalia after a secret panel of citizens picked by Deputy Commonwealth's Attorney Albert Alberi determined that the items were obscene.
The other five businesses pleaded guilty late last year or in January, leaving only Tara Thunder to fight the charges.
``I think this has all been unfair,'' Adams said after Wednesday's hearing, in which prosecutors asked that the charges be dismissed. ``When I got my business license, I called the city attorney and commonwealth's attorney to see if these things were considered obscene. I was told it was all right.
``It's caused me lots of problems. It's cost me lots of money. I'm still baffled. I'm not sure what happened.''
On Wednesday, prosecutors formally dropped charges against Tara Thunder. On May 19 Judge A. Bonwill Shockley ruled that evidence collected during the search could not be used in court because an affidavit filed with the search warrant contained a false statement by its author, investigator Jeffrey Spain.
This false statement violated the Fourth Amendment, which prohibits unreasonable searches and seizures, Shockley wrote.
Shockley's ruling ends a case that has been controversial from the start.
The investigation began in October 1993, when two detectives bought several sexual aids from the stores. The sweep included Tara Thunder, three locations of Beach Books Shoppes Inc., 17th Street Books, and Oceana Video and News.
A three-person panel, convened by prosecutors, determined in February 1994 that the items were obscene. This provided probable cause to issue a search warrant and raid the stores on March 16, 1994.
A second panel of citizens then was convened to review the items once more, and the owners were indicted in September.
On the search warrant for Tara Thunder, Spain checked a box stating, ``I have personal knowledge of the facts set forth in this affidavit.'' Yet in a hearing this month, Spain testified that he was not present when the secret panel met.
According to Shockley's ruling: ``Spain testified that he did not personally convene the citizen panel, present the items to the panel, or witness their decision. Further, he testified that he has no personal knowledge of the reputations of the citizens on the panel, how they were selected, or what they were told concerning obscenity. He explained that he was told about the panel and its decision by other police officers.''
Although Spain would not comment Tuesday, records show that he thought he had personal knowledge because his supervisors told him about the panel.
Alberi said Wednesday he was not comfortable commenting about the case.
Although Alberi was not mentioned in Shockley's ruling, court records show that his role was crucial. The citizens recruited by Alberi for the second secret panel were all white Protestants, including five members of the same Methodist church and a former city councilman who led an anti-smut campaign in the 1970s.
In similar cases, prosecutors have said they use a cross-section of the community to establish community standards.
Alberi subpoenaed the citizens for the trial of another store owner, Louis Krebc, in September. To protect their identities, he did not file copies of their subpoenas in Circuit Court, Alberi said in a letter to The Virginian-Pilot and The Ledger-Star. The newspaper had requested the names. Defense attorneys alleged that he violated state law by failing to file the subpoenas in court.
In the letter to the newspapers, Alberi wrote that he ``overlooked filing the copies'' of subpoenas and called this ``an error in judgment on my part.''
Spain's testimony also showed that Alberi's name was dropped from the affidavit before it was shown to a magistrate. On March 11, 1994, Spain was told to prepare an affidavit. He then brought that draft to a meeting attended by him, Alberi and Spain's supervisor, transcripts show.
``There was a couple of changes that were recommended,'' Spain testified at a hearing earlier this month.
Adams' attorney, George A. Neskis, asked who made the recommendations. Spain replied: ``Myself and Sgt. Huston met with Mr. Alberi and went over it.''
Neskis asked what items were changed. Spain answered: ``If I recall, there was a couple of names in there - Mr. Alberi's being one of them - that was removed from the affidavit.''
The dismissal of charges against Tara Thunder will not affect the other store owners because they already pleaded guilty, their lawyers said.
Krbec, owner of Beach Books, sold his three stores rather than close them after pleading guilty to possession of obscene items in September. He promised not to open another book or novelty store in Virginia Beach, agreed to pay $3,000 in fines, and forfeited thousands of dollars of sexual aids.
In January, the owners of Oceana Video and News and of 17th Street Books pleaded guilty. They paid $250 in fines and agreed not to ``sell or distribute items at issue in this case in the city of Virginia Beach,'' court records showed.
KEYWORDS: OBSCENITY PORNOGRAPHY BOOK STORE by CNB