*1 Dist., No. 33606. [Civ. Second Div. Five. June 1970.] al., MONICA et THEATER Plaintiffs and Appellants, THE MUNICIPAL COURT FOR THE BEVERLY HILLS JUDICIAL DISTRICT OF COUNTY, LOS ANGELES Defendant and Respondent; PEOPLE,
THE Real in Interest Party and Respondent.
Counsel Fleishman for Plaintiffs
Stanley Appellants.
No for Defendant and appearance Respondent. Lederman, J. Attorney,
Evelle District Wood and Robert Harry Younger, District for Real in Interest and Deputy Attorneys, Party Respondent. Opinion
REPPY, J. At theoutset we out that this deals with strictly point opinion *4 Code, (Pen. material) a misdemeanor violation 311.2—exhibiting obscene § and with a a under into of warrant judicial grounds inquiry supportive A which an obscene was seized. on- allegedly motion film picture pretrial the-merits determination as to whether the material is or is not subject obscene legally involved. 13, 1967,
On November
a citizen had
a
the
after
made
complaint
obscene
an exterior showcase
police concerning allegedly
photographs
film,
Confidential,"
“Motel
shown at the Monica
advertising
being
Theater in
Hollywood,
West
Officer Serio examined the
and a
photographs
(hereinafter referred to
as the
and viewed
poster
collectively
photographs)
a
of the film.
thereafter
District
performance
Shortly
Deputy
Attorney
Hecht
Serio,
saw a showing of the
Over the next few
Officer
days
picture.
Hecht,
with the assistance of
District
and
Deputy
Attorney
prepared
executed an affidavit for a search and seizure warrant. On November
1967, the affidavit was submitted to a
of the
court in his
judge
municipal
as a
capacity
magistrate. The affidavit
information
Officer
gave
concerning
officer,
Serio’s
aas vice
indicated his
with the word-
experience
familiarity
of Penal Code
ing
section 311 and with
of the United
and
decisions
States
California1
Courts
a
Supreme
on the
word
subject
obscenity, gave
detail,
of the various
considerable
both
depiction
film in
episodes
Court,
Municipal
1Reference is made
to Flack
Seltzer criminal a document which proceedings he denominated “Traverse Grounds of Issuance of Search Warrant *5 Motion to Evidence and for the Suppress Seized Restoration Properties Warrant,” Under Search aby declaration made supported by Stanley Fleischman, Seltzer’s in which attorney, he a number of motion specified a pictures, magazine, drawing and other alleged materials authorities by to have been obscene but found not to have been obscene in court decisions and his expressed that “Motel Confidential” was not obscene but opinion was free and protected also speech, by of Seltzer declaration supported in which he identified as himself served with party the notice to appear, stated that he issued, controverted grounds on which the warrant was and made known his belief that the film and were not obscene photographs but were free protected speech. (as 2Penal Code amendment) section 853.6 prior it read provided the 1969 in ,as
part follows: “In in person case which a arrested ... misdemeanor . arresting . . the officer . . prepare . shall in duplicate appear written notice to court, containing the . . . charged, offense and . place appear the time and . . [to] , “The officer shall deliver copy person, one ... the arrested . . must [who] give promise appear by signing his written duplicate. so to ... . . . duplicate officer . . . magistrate “The shall file the notice with . . . Code Penal section 853.9 . . . . pleads ‘guilty’ complaint “If defendant . . shall other than ... except may writing filed . . that a filing . defendant . . waive the of a . . ... . . complaint may and elect that the prosecution proceed upon appear.” a written notice to 5, 1967, a cause" was on December Commencing “probable it, At the Serio affidavit warrant. magistrate issuing conducted evidence, declarations were received and the Fleischman and Seltzer cross-examined, Hecht, Officer Serio and District were Attorney Deputy Confidential” and the with together and the film “Motel copies photographs were received in of várious other magazines, photographs portrayals, viewed the film “Motel Confidential” various evidence. The magistrate Seltzer, films, had been made available several which comparison which, but one unadjudi- not obscene in adjudged proceedings, cated, to be obscene. suggested was Seltzer court to view the comparison defendant’s asked the
Although attorney films, them,3 so, never and the court did never and the court he offered them, as received evidence. (1) that the warrant
At Seltzer contended: hearing, the probable an adversary because had conducted was issued not invalidly least, not, at viewed had concerning alleged obscenity, its warrant; warrant (2) the issuance the search before film issuing face, insufficient, in it, its seeking was invalid in that the affidavit affidavit, in and the cursory that the word of the film was too depiction Serio, substance, and in of Officer became conclusional only opinion had field that the officer had failed establish his expertise and customary standards failed to evaluate the film under contemporary candor; and the Serio of Officer limits of that the cross-examination and the film had demonstrated film comparison presentation and had had in his affidavit Officer Serio not film accurately depicted that, the film obscenity, been rather in his its wrong opinion did “Motel Confidential” was of such that it provide make-up Seltzer cause for the issuance the warrant. The found against *6 as to had been issued each of his contentions and held the warrant properly. could, so and he of was set that he
The date for the Seltzer arraignment for writ of 4, 1968, file the court a superior did January petition that magis the called attention to the circumstance mandate. The petition a or conducted or the prior trate had not viewed the film photographs the issuing before obscenity their concerning alleged adversary proceeding of Officer warrant, it copies and attachment and reference incorporated declaration affidavit, and Seltzer’s opposing Serio’s Fleischman’s supporting It magistrate. alleged the the before hearing the of and reporter’s transcript course, 3The prosecution, of did not offer them. standing because Theater, petitioner but had corporation, also was a no 4Monica a We, magistrate. hearing before the a the
it had not been movant appeal. therefore, corporation’s purported give no consideration to the that the were not obscene but were protected the film and photographs that of the warrant in reliance the solely free and the issuance speech upon the order the magistrate affidavit of Officer Serio and of the refusal the and of film and after hearing restoration suppression photographs (1) were freedom of of con- restraints violation prior upon speech matter, (2) denials due stitutional to that provisions relating subject and to the seizure of the constitutions. process, contrary provisions writ, and was heard. court issued alternative superior petition fact, March its con- On findings made superior and that chronology clusions of law The court found judgment. outlined, events was as above that contained detailed Serio’s affidavit of the summary contents of the film which the relied magistrate upon warrant, film, issuing that at the viewed the hearing films, and the that film and photographs comparison photographs obscene, were and that the the warrant the denial probably issuance of restoration of did not constitute either suppression materials communications, prior restraint on due denial of or violation of process, constitutional seizure The trial court noted that it had read the provisions. Serio affidavit and the magistrate. entire before the of the transcript It then concluded that the Serio affidavit was sufficient to establish probable material, cause to believe that the film and the were obscene photographs seized, that they were was correct his ruling properly items, Seltzer was not entitled and that alter- to restoration of the native writ should be denied. It discharged and the writ peremptory issued its judgment accordingly.
Seltzer then appealed from court. judgment superior Appeal
Contentions On The contentions on are as follows:
1. The issuance of the warrant for and the seizure motion picture film and the without adversary photographs prewarrant ex view the parte material violated the free due speech, process, seizure provisions Constitutions of the United States and California.
2. The issuance of the warrant the seizure of the film and photo- Serio, in reliance graphs, solely the affidavit Officer which was *7 standards, conclusional allegedly and was formulated under unconstitutional violative of of all said constitutional provisions.
3. The failure of the at the cause before the People, probable hearing magistrate, adduce evidence that the film goes beyond customary limits matters, of candor in the of sex description appeals prurient without social average utterly redeeming
interests of the and is person, of the violative of said holding renders continued film importance, constitutional provisions.5
4. trial court to make failing The erred in mandate proceedings of made covered Seltzer findings by pursuant points request Procedure, Code Civil 632. of section warrant, seizure, in the
5. The and review hearing procedures pursued instant case did not of determination of question provide speedy whether the film and from free were or protected by excepted photographs of the Constitution. speech provisions
6. The definition of contained in Penal Code section 311 was obscenity and the seizure and given vague broad construction in overly authorizing film holding vague. photographs question
Discussion (no determination contention number 5 on-the-merits Despite speedy the record brief indicate that the factor of obscenity), and Seltzer’s only probable cause for the seizure warrant was involved in the issuance before the review magistrate and in the under superior Thus, the alternative writ of mandate.6 we are concerned with per- con- when and what means on-the-merits judicial plexing problem be- sideration of character of the involved material speech (protected obscene, should be obscene) cause not because speech unprotected afforded to a trial for exhibiting of a defendant by jury) prior (presumably Giannini, (In contemporary 5To evaluated under re statewide standards 563, 577, 535].) seq. Cal.2d et 446 P.2d cognizant are opening says, “Appellants 6In his brief on of course appeal, Seltzer ,” . . he probable that the in the is one of cause . and makes case at bar jury grand involving probable for a superior reference to a cause court decision indict. Code, following cause: Penal warrant “must set states probable The is of as Section interest request affidavit of a for seizure support that the submitted in believing that . . . tending [the to establish . . cause for forth the facts . ground application] exist[s].” Code, be issued but search warrant cannot provides: Penal “A Section . describing the . . particularly [items . . . . . probable cause . affidavit [shown] sought] to be place searched.” the instant one is .as ground issuing warrant in cases similar for the any person with the intent to . possession “When . . in the is] follows: [item Code, (Pen. § . subd. committing offense . . .” public use it 3.) a means believing ground for the Probable issuance of the warrant exists intelligence ordinary if present person (“ordinary said to be receptivity is prudence” apropos) used, frequently employed is the term we are more but feel the words here strong suspicion conscientiously would be led to entertain an honest
9 Arnebergh, Cal.2d 901 (See Zeitlin v. obscene material. Court, Municipal Aday v. 152, A.L.R.3d 800, P.2d 707] .)7 Cal.Rptr. 576] 249 [26 Cal.App.2d above, are con- initially we defined the limited issue with In connection basis for before or decisional statutory about cerned magistrate.8 (a) that: “A of section 1538.5 defendant move provides
Subsection may . . for the return of or to as evidence . any thing property suppress obtained as a . . a result of . . seizure on the that: . . . . . ground [t]he . seizure . . was because . . . there not unreasonable probable . . or . . . . . . any for the issuance of the warrant . there was violation that, (c) of . . . constitutional standards.” Subsection “Whenever provides . . . . . . court ... a seizure motion is made in the municipal . . . shall evidence on issue of fact receive any necessary determine the motion.”
This of section 1538.5 part seems to contemplate a full hearing on of the lack cause for the probable issuance of a seizure warrant violations, reasons of free speech where the movant is a defendant and the material involved is intended be used as a evidence in criminal trial. of the concept Appellate Department Court for Los Superior Angeles County, Cimber, which People appears v. 271 Cal.App.2d ground exists,* that session of a is, that cases with type, instant that the pos film is in the particular person with the intent use as a committing means of public offense knowingly exhibiting possessing with intent to exhibit film or photograph that to the average person, standards, applying contemporary pre has a appeal, whole, dominant taken as a to a nudity shameful interest in and sex and that making goes such appeal substantially beyond customary limits of repre candor in utterly sentation redeeming and is without (See Code, importance. 311.) social § Pen. 7It is Legislature noted that the appears cognizance to take of the decisional rule pretrial that a on-the-merits consideration of the character of the involved material (obscene obscene) or not (Zeitlin Arnebergh, supra, available to defendant. v. 901; Aday Court, Municipal Cal.2d thereof states supra, v. 229.) 210 Cal.App.2d (n) Subparagraph nothing contained in prohibit person making section 1538.5 “shall motion, permitted law, otherwise by (n) property return [subparagraph does evidence], not suppression brought mention ground on the property ob tained is protected by speech the free . . . . . provisions of the . constitutions.” and “[n]othing altering this section relating shall construed as . . . the law proof regarding (as burden of . . . seizure . . . .” Section 1539 enacted in that, 1967) states ... motion to property “[i]f return be made ... a defend grounds ant (n) not covered light section 1538.5 [perhaps in subsection speech protection ground constitutional free . covered] . . the . . . proceed testimony must to take . . relation thereto. .” supporting authority 8The specified Seltzer was Penal Code 1539. section *(Witkin, Trial, Proceedings Cal. Criminal Procedure p. § Before 137.) Only probability, prima showing, activity and not a facie of criminal is the (Spinelli States, 410; standard of cause. United 393 U.S. 419 [21 L.Ed.2d 584].) 89 S.Ct.
10 Co., 867, 382], People and v. Printing 870 Cal.Rptr. [76 Bonanza Supp. 379], 871, a that section 1538.5 Cal.App.2d Supp. the its to examination of affidavit on face and strictly relates the vehicle for a broader testimonial that section inquiry 1539 provides It has corrected two does not to be accurate.9 been in unpublished appear Stuart, Davis, People A. and Stuart v. No. Cr. opinions, Superior Court No. 968656. that, “If the . . .
Subdivision of section 1538.5 (g) provides property the to a the shall be made relates misdemeanor motion in complaint, at a . . trial and trial . before heard special municipal prior , However, . sub the of the . seizure.” hearing relating validity that, set (b) with the forth in consistent procedures section “When provides who , heard the sectioh . . . should first be by this motion (m) . . of section 1538.5 issued the . warrant . . .” Subdivision pro . section, that, Section vides for in “The provided proceedings exclusiv sole and Section and Section 1466 shall constitute the e . . . seizure a test the unreasonableness of remedies to conviction to prior case defendant in a criminal where the ... is a making the motion person him.” against and the . . . will be as evidence offered property a in Since Seltzer was defendant the criminal since proceedings, is obvious that film and were intended be offered evi as photographs dence in the trial against him of violation of section 311.2 charge since contention was that seizure of the film photographs with the warrant was unreasonable there because was no probable for the issuance of the warrant there a federal state was violation of or (the constitutional standards were there items so not obscene that clearly may 9That wording have been the case under of sections 1538 and 1539 before they were delivery amended 1967. of a simply provided in Section 1538 for the then (to copy inventory of an person possession to the from whose was taken property grounds interested parties) provided and section that: “If the on which the war controverted, testimony magistrate] proceed rant was issued be . . to take . must [the . . in relation thereto . .” proceedings The 1967 was at the involved amendment effective time consideration, case. section instant Pertinent circumstances under- grounds was which warrant issued provides amended “if on by a on property and a motion return be made ... defendant controverted grounds proceed to by . . . . . must not covered Section 1538.5 . play only if the testimony would into take relation thereto This come ground pretrial 1538.5. If in California a were on not covered section motion lie, adjudication respect obscenity does such with on-the-merits for an motion Legis- made, ground section 1538.5. The it would be not covered on motion 1538.5, procedure may lie. subdivi- recognition Section that such lature intimates its person from (n), shall “Nothing prohibit this section part, states contained sion making brought law, motion, property, to return permitted .a otherwise speech press provisions protected by the free ground obtained is property constitutions.” the federal and state were they by magistrate for a determination probably no room was Seltzer 1538.5 the exclusive remedy section obscene), a motion under *10 and at the 1538.5 as evidence the or of property, for the return suppression fact issue of to evidence on any entitled receive the was hearing magistrate of as the There is no limitation to type to the motion. determine necessary of or It to the affidavits submitted support evidence. is not restricted of include testimony to the for the It warrant. request opposition could officer, the witnesses, of the presenting the cross-examination including evidence. documentary and materials themselves other questioned a Thus, 1538.5 proceeding. we conclude that the conducted district Childress the filed the of third Pending filing our appellate opinion, Municipal Court 383]. Cal.App.3d Court, com- a but some There be before the may yet hearing writ of ment is note that one petition indicated. We point declaration the by support that the filed prosecution prohibition face; was that on that another the seizure warrant was insufficient its point merits; had no code the was not the that Childress made film obscene on motion; court felt designation section for her and that the appellate (n) issues were the under subdivision both before court municipal properly 1538.5, of section the that the suggested prob- General although Attorney (a) able cause (2), should have been aspect under subdivision presumably further (iii) (v). under and it was of categorized a matter just ap- Apparently one or other subdivision to Childress’ plying without petition penalizing her for her lack of Our that the subsections designation. suggests opinion referred to General by were the ones for the Attorney proper cause issue.
Further, we note that Childress our that existing shares view impliedly state without a procedures, hearing, adversary including appeal prewarrant authors, of 1538.5 rulings courts, its as said municipal “provide' constitutional . . . .” ample protection
Our next concern is what was the to Seltzer. remedy review proper open Subsection of (j) follows: “If the section 1538.5 provides prop- part . seized erty . . and relates solely complaint, misdemeanor defendant made motion for or return suppression property evidence trial, in the . . both court . municipal people prior defendant relating shall have the decision of court right appeal any to that motion of inferior court of the which such county superior located, court is . . . in accordance with the Rules of Court California (o), This is to re- (i) contrasted with the subsections provisions offenses, lating felony wherein it is that after provided special is held in the court desired shall be means superior review pretrial a writ of course, mandate (directed, of Ap- Court prohibition No the variance in remedies based doubt review
peal). upon assump- tion that the time schedule ato decision in the way leading (by appeal) of a court more than that the Court appellate department superior rapid (where mandate and means to Appeal speedier prohibition provide decision) that the review at desire in misdemeanor cases prompt level be in of that court.10 superior appellate department before the Probably misconception 1538.5,11 was under 1539 rather than section section because possibly review, he felt it would an even did Seltzer provide speedier *11 instead, magistrate’s but, made at the cause ruling hearing probable pe titioned the court for a writ of mandate. It is whether superior questionable been should have If relief is it is sought, motion permitted. order, denied an remedy by normally adequate. appealable appeal Witkin, Writs, 3 (1954) 50, 2533; Cal. Procedure 3 Extraordinary § p. Witkin, Writs, 53, 2538-2539, (1954) Cal. Procedure Extraordinary pp. § citing Court, 398, v. Police Andrews 21 Cal.2d P.2d 145 A.L.R. 479 [133 However, 1042].) sometimes, even when remedy, proper mandamus is authorized (3 because all have Wit parties acquiesced. kin, 51, Writs, 2535, Cal. (1954) citing Procedure Extraordinary p. § cases, cases.) citing 1967 also In the instant case it would Supplement, did and that the court appear People acquiesce superior accepted However, and acted we in that do not endorse petition light. this avenue of review.12 We note is available appellate preference under a We do not rule out the use showing. absolutely of proper need, writ method. Under a showing including the circumstance strong that a unavailable, film is a defendant unsuccessful in a section duplicate 1538.5 might be alternative In the instant granted an writ. matter since the court did entertain mandamus superior proceeding points of law involved, are we have decided let the mandate principally pro stand such ceeding and to those merits which we review issues on the consider to be before us. properly turn to a
We consideration of Seltzer’s contentions.
With to Seltzer’s first contention respect (required pre-warrant 10The appellate (a court) department three-judge superior court and a writ judge jurisdictional (See People of that Allenthorp, court hold different powers. v. 64 244, Cal.2d 679 [51 414 for example.) 372] P.2d one only
11The recently section had been enacted. 12One doing forceful reason is that there an A so should be end reviews. ordinarily defendant get judicial by being should not fourth consideration able appeal to the of Appeal extraordinary pro Court from an adverse decision on writ an ceeding superior (n) judge. before a We do not feel that subdivision section 1538.5 authorizes writ review.
13
decisive
.film), we find no
view of
pro
or ex
adversary
parte
Court that for
the United States Supreme
the decisions of
nouncements in
seizure
to issue a
warrant
asked
purposes magistrate,
warrant,
be
(1)
cause to
film, must, before issuing
for motion picture
would involve
(which probably
and hold an adversary proceeding
initiated
limits of
customary
standards
evidence
contemporary
receipt
ex
film),
(2) at least view
film
or
and a
involved
candor
view
636,
Virginia
U.S.
(1968)
[20
Art
(See Lee
Theatre
parte.
Quantity
Books v. Kansas
2103];
A
L.Ed.2d
S.Ct.
1823];
Prop
Marcus v.
84 S.Ct.
(1964)
It is
to be valid should set some time
suggested
section 1538.5
commence,
which
within
court should
conclude
or
magistrate municipal
defendant,
if
a
and within
and rule
a
moved for
hearing,
special
Maryland
be
Freedman which
review
and determined.
should made
380
(1965)
U.S.
L.Ed.2d
85 S.Ct.
does recommend the
51 [13
734]
655-656])
New York
60
L.Ed.2d at
which
system (p.
pp.
specifies
[13
action;
time the United
certain time limits for
but at
same
judicial
656]):
at
Court
“We do not
Supreme
says
States
L.Ed.2d
(p.
p.
[13
to
down
limits
lay
mean
time
or
. . .” Freedman
rigid
procedures.
an initial evaluation
a biased administrative censor which
involved
here,
page
being
13Footnote 13
warrant
we
at
reads as follows: “No
involved
determining
problem
necessary
have
to
none
evaluate and thus do not reach the
of a
do
content
warrant. Nor
we here ascertain whether
is feasible for
allegedly offending
adversary proceeding prior
examine the
or
issu
film hold an
warrant,
Quantity
ing
suggested by
justices
Books v. Kansas
four
in A
supra,
Freedman
valid
that a
.
says
“must .
. assure a
process
final
prompt
decision,
judicial
to minimize
deterrent effect of an interim and possibly
erroneous denial of a license
(P.
[from
L.Ed.2d at p.
censor].”
655].)16 California,
In
the defendant in a misdemeanor
has three
setting
levels
third,
of judicial consideration. The
what
ought
be the final
one, is his
appellate
court. It is
department
superior
felt that the time within which this can be
if
processed, particularly
pref-
erence
*13
allowed,
considering that the unsuccessful defendant has had
one adversary judicial
already, under the
proceeding
adequate
elastic
standards
the United
promulgated by
States Supreme Court. It is also
true that the
need for a
ex
possible
prewarrant adversary
or
proceeding
view is not as
parte
where
one
of an
obscene
pressing
only
copy
allegedly
film is seized which
was the circumstance
this case.17
apparently
14In holding
Maryland
the
unconstitutional,
censorship
process
board
the United
States
Court stressed that
the initial
the
judi
decision
board was without
participation
cial
(pp.
652])
54-55
p.
safeguards
[13 L.Ed.2d at
and lacked
for
confining the
judicially
(p.
censor’s action to
determined constitutional
limits
653]).
L.Ed.2d at p.
[13
15We note that in the instant case the warrant was
and the
on
issued
seizure made
22,
November
and that
adversary
hearing
the
probable cause
commenced on Decem
5,
ber
a period
days.
of nine court
case,
16In a California
it
warrant
would be a
a
denial of
for
prop
motion
return of
erty after a probable
hearing.
any event,
17In
suggests
the evidence
showing
was due to close in one or two
nights. No evidence
introduced
could not have
Seltzer
obtained another
copy of the film if
he wished
the
at his
extend
run
the film
theater.
have
would
or hearing
case,
viewing
indeed,
a
in a
If,
given
prewarrant
the
decision at
warrant,
same
a
the
to issue
the
not
inclined
in restoration
would eventuate
hearing
section 1538.5
of a
close
more
would
even
(which
be
restraint18
film,
a minimal
creating
prior
the
between
the interval
during
obtained
if a
film were
duplicate
minimal
motion).
section 1538.5
on the
decision
seizure
a
cited
In
brief filed
defendant
supplemental
just
argument,
prior
cases,
three recent federal
from
one from the
Circuit
two
Fourth
Circuit,
an
Second
be
which stand for the
that there must
proposition
on
film cases
infmotion
adversary hearing
question
obscenity
picture
a
before warrant for
be
are
where
can
issued. Two of them
cases
seizure
seizure was made
had viewed
under a warrant issued
who
by magistrate
the film and where
had sought
equitable
possessor,
proceeding,
case,
secured an
film. In each
injunction
return of the
requiring
order was
injunctive
made conditional on the possessor supplying copy
film for the
trial. In the
the fed-
subject
criminal
first of
purposes
to,
1959)
eral cases referred
Inc. v.
Tyrone,
(4th
Wilkinson
Cir.
410 F.2d
certiorari denied (1969)
U.S.
L.Ed.2d
S.Ct.
478], the means for
could
which
result in
hearing
providing
permission
seizure,
it,
the character of the film allowed were
Mentioned
if
discussed.
awere
an order to
why
or
show cause
preliminary
injunction-type
the film should not be seized.
it was stressed that the
Although
would have to be one which would
“focus
searchingly
it was
be
obscenity,”
made clear that would not be
there “to
necessary for
matured action.” This
that the standard of
would be
fully
suggests
inquiry
that of
which is the
cause”
for the issuance of a warrant
“probable
premise
case,
In
Corp.
(2d
California.
Bethview Amusement
Cahn
second
1969)
Cir.
416 F.2d
certiorari denied
L.Ed.2d 90 S.Ct. it was that the legiti- suggested government’s mate concern that the aof of such requirement preliminary proceeding a nature would the threat of a of the be pose rid film could possessor getting met an ex order the effect that the film shall not be parte restraining of. disposed Cinema, cited, case Vergari, third Inc. v. Second unreported
Circuit court reverses district court opinion, in 298 opinion, reported 1175, which a warrant F.Supp. seizure to which there upheld was no pre- warrant adversary appraisal.
We are advised that in each of the three cases for writ of certio- petitions rari to the United States Court were denied.
These decisions are not noncontrolling sufficiently persuasive require ruling California (untreated with Flack v. present system Court, Municipal supra, and in People Renzy, supra) sanctioned v. de unconstitutional.
California’s section 1538.5 ais which allows procedural vehicle for a very and is one which prompt adversary “the censor” proceeding, knows calls for (See Maryland, him “to to court.” Freedman v. supra, go 51, 649, 655].) U.S. L.Ed.2d 59 [13 Demich,
An decision, even later Inc. (9th 1970) v. John J. Ferdon Cir. 643, 426 F.2d decided the United States Court of for the Appeals Ninth Circuit follows these May federal counter preceding with a film seizure parts dealing (See case in California. also arising Metzger Pearcy (7th v. 1968) 202.) However, Cir. 393 F.2d the opinion makes no reference the California scheme for statutory judicial prompt review of a Thus, issued search (§ 1538.5). warrant find it previously we Willard, (cf. not People controlling Cal.App.2d 734]). Moreover, we with the agree fundamentally dissenting restraint, therein. The opinion before such a only imposed hearing, This briefly. meets laid test down in United States Photographs, v. 37 F.Supp. three-judge Court, decision of the United States District Division, Central California, cited defendant in his brief. supplemental Moreover, we feel that one or more affidavits submitted to the magistrate of a for a support seizure warrant manner request can be in a composed to focus on the searchingly Detailed obscenity. word pictorial descriptions of the film continuity plus whose opinions experts, are qualifications can serve adequately given, this purpose Ob initially.19 the extent and viously, intensity would inquiry at a magnified section 1538.5 adversary proceeding.
19The material in the affidavit Serio in the instant case is exactly overpowering, *15 is necessary that a adversary proceeding It is suggested pre-warrant to the information relating receive evidential order that the magistrate may (somehow to be identified standards which average person contemporary if the be deemed to in determining predomi- would by thcmagistrate) apply sex, if the and and interest nudity of the film is to a shameful nant appeal of candor in limits beyond customary repre- of goes method in the offered sup- can be affidavit Such information included sentation. Moreover, feel that at the a warrant. we probable of the for request port in an area as one certainly cause level20 magistrate, serving exposed would know by media as West Hollywod, broad the entertainment scope to be the law obscene material gauged, what standards allegedly requires standards and customary would some about have knowledge contemporary candor, fact when limits of and would such knowledge evaluating apply cause an recitals an affidavit. We also feel that for probable purposes film, in a both as to sight word of the various adequate depiction episodes sound, can be made. and can be evaluation set out so appropriate
Seltzer’s second contention on appeal (inadequacy police face) affidavit before this court. on its not properly attack, Seltzer, At the as a second did cause hearing, ground warrant on its face. of the affidavit for seizure sufficiency and he was asked and con were Arguments pro magistrate, presented Seltzer, to make his forthwith that should it be in favor of so ruling could and the terminate at that saving point, parties and their which would be involved in an evidential hear- counsel the time found that the affidavit was sufficient. Defendant might ing. magistrate have decided to take his at this level and to seek review of the rul- stand “certiorarified man- ing by statutory remedy appeal, possibly However, date.” into the evidential he did not do so. He chose go phase. knowledge particularly contemporary with respect expertise to the officer’s standards and limits candor. support which would an in- However there was embodied in the affidavit material magistrate contemporary ference was familiar with standards that Officer Serio candor, obscenity investigations for year specializing and limits of such as his meaning state, depictions, his reference “the his allusion to “candid” opinions . . . of the United Court.” States personally presented Officer his .affidavit the record indicates that Serio Evidence in magistrate prior and that he was known to a warrant for Thus, observation of Officer Serio’s the benefit of a visual had time. familiarity with the of his presented attitude demeanor when the affidavit specialty. officer’s .adequacy of as to the magistrate’s conclusion to rule that the sufficient for us It controls. his conclusion justified. supportable, If so affidavit was the Serio Giannini, an actual trial. supra, deals with standards 69 Cal.2d 20In re *16 received was a calculated risk decision21because the evidence to be at This would for the the cause become the basis probable hearing support of the warrant and the control the film the validity continued People. view of the word The the film itself the would supersede of it at the hear- in the affidavit. The information gained picture presented officer and of the ing concerning qualifications expertise deputy district of their would attorney supportive opinions supplant supple- films, ment material in the affidavit. The which Seltzer comparison to the at first reluctant to do so ultimately magistrate, presented although risk, because of the standard recognized augmented any contemporary in the affidavit.22In each evidence concepts implict hearing instance could turn out to be more substantial from the than the People’s standpoint material contained the affidavit.
Thus, make, review which the court was superior which warrant, court make of the worth of might the material of the supportive be all would one of of the evidential material submitted to the magistrate at the cause and not one of the facial probable hearing solely language However, the Serio affidavit. there be would to such a re- judicial point view if this only had submitted aspect been hearing court the mandate superior entertaining proceeding.
This leads to a consideration of Seltzer’s third contention on (failure of candor, to introduce evidence on limits of appeal People and social prurient There are two reasons his appeal, unimportance). why contention films, he chose to unavailing. Firstly, submit comparison which bore on this issue. If of a were nature which the they considered favorable to the had they of this cir People, advantage cumstance. record is Secondly, disclose whether inadequate that issue court. We do not put indeed have a superior reporter’s of the mandate transcript or the minutes court. There proceedings law, are only of fact and findings conclusions of It is the judgment. obligation this court with appellant record. provide adequate Court, (Thompson v. Superior Cal.App.2d Likewise, 530].) course, Seltzer, it was the as the obligation petitioner in the mandate before that court all of the bring evidential proceeding, material essential for it to review and all him. points urged by pass of fact intimate court did not findings view the film superior evidence, 21At the the affidavits could part if received for that However, purpose. They were the instant case. certainly film itself would be the superior evidence of its portrayal. adjudicated 22There was the indication that Officer Serio was with familiar materials on a at opinion statewide basis and intimation his was derived least the knowledge. from such *17 However, clear it nowhere the films. or “Motel Confidential” comparison made were these films or and conclusions that photographs in the findings was offered received Confidential” film “Motel available. the Although not; the films were cause the hearing, comparison in evidence in probable Therefore, been not have the latter could properly reference. by not even of an or the ap- court absent a pursuit the stipulation before superior record which of the probably to make them part propriate This being been conducted the would have had to have before magistrate. us, warrant our review we find no basis to the of the record before posture the warrant evidence to the of the of the sufficiency support of question the or (in films advantaged whether the People particular comparison Thus, of the Seltzer). we not the do reach somewhat provocative evidence should be at extent to which developed of candor the limits
on factors of standards customary contemporary as of as either knowledge rendering part part experts opinions for the court itself its consideration material in background film, or both. to, contention on which we now turn
Seltzer’s fourth ap appeal, his made at the time limited to parently request findings special were Seltzer under consideration. findings proposed People prepared had also had filed and conclusions and objection findings proposed submitted some and conclusions. The proposed counterfindings propriety rulings court as the latter does not seem items superior event, to be now under attack. In most of the would be moot any points light limited issue we to be to this consider subject properly was to a that made finding deserves comment. Objection One item review. and to were obscene had determined that the magistrate photographs not that Seltzer was was correct ruling that the magistrate a conclusion find how the was need to There no entitled to their restoration. own its making court independent The presumably
ruled. superior action court’s be said that the reality It can superior determination. own prob this was the its finding photographs regard making the warrant valid as to the seizure of (thus were obscene ably making Serio, conceded that them). cross-examination Officer Actually, been that have The should finding were not obscene. photographs obscene, Seltzer with were not possessed although photographs, obscene offense of exhibiting intent to use a means to commit them as audience for the to obtain the (the film). the lure They were material will be con is so exhibition. obvious explanation point sidered that the is so made. finding with the dealt pre-warrant
Seltzer’s findings through proposed for the court It have been circumstances. would superior appropriate However, indicated, make such as this facet does not to be findings. appear and, event, of Seltzer’s their absence has part point appeal; our review these issues. We have resolved them hampered considering such been made. having findings
Seltzer a conclusion of law to the effect that it was violative proposed of the constitutions for the without superior uphold *18 film, and the viewing films. this Again photographs comparison Moreover, item not to be included the contentions. as we have appears out, the record to us is pointed brought insufficient of up permit determination as to whether a record on the issue of the adequate sufficiency cause evidence was made available probable court. superior
The (the special failure to make findings requested which is the true contention) (1) marrow this are whether these: the film and photographs , material; are (2) constitutionally whether do not protected they appeal interests; (3) prurient whether do not they exceed the substantially limits candor customary (4) such making whether they appeal; are not without utterly social redeeming The first importance. request for conclusion. really All are drawn in the on- context of an requests the-merits determination as to the obscene character of the ma- pretrial here, terial. At the level of judicial involved inquiry would be whether a ordinary would con- person intelligence receptivity entertain a scientiously that had the material strong suspicion Furthermore, listed characteristics. of this again contention is dispositive the factor that our does record not enable us to that there was a record say before the court which would call it to make on the superior findings subjects listed.
As to the fifth contention failed to deter- (proceedings provide speedy mination of whether film and were photographs protected excepted from free constitutions), it speech it provisions appears applies on-the-merits determination obscenity which was never to the put magistrate whose was under review by the court. If a ruling prompt superior contention, was, is the this in our subject achieved, we have out. opinion, pointed sixth, The answer to final, Seltzer’s (overbroad on contention construction of vague Penal Code’s section 311 definition) obscenity that the construction which to have been utilized in this case is appears and similar contentions made in the unique California cases leading have not or dicta produced rulings comfort or giving encouragement Court, (Cohen Seltzer. Municipal v. 250 868-869 Cal.App.2d [58
21 Court, 342- 846]; Kirby Municipal Cal.App.2d v. Cal.Rptr. U.S. (1957) 354 United States 844]; Roth v. cf. [46 1304].) 1498, 1511, S.Ct. L.Ed.2d 492 is affirmed.
The judgment J., P. concurred. Acting
Stephens, seized by film was In AISO, my opinion, J. dissent. I respectfully found that of an court virtue invalid warrant. superior expressly (seizure) solely warrant relying the search issued validity Officer “It is elementary passing Serio. affidavit only information warrant, brought consider may the reviewing U.S. Texas (Aguilar v. attention.” magistrate’s 1509, 1511, 1].) 723, 725, fn. Accord 109, fn. L.Ed.2d 84 S.Ct. 1 [12 (1970) 6 Thompson People Cal.App.3d court held in ingly, *19 basis issued 327], solely a warrant of arrest upon Cal.Rptr. [86 (c) subdivision of of an insufficient affidavit was invalid. The language search or seizure Penal Code that section 1538.5 of the “[w]henever section, the in this motion in . . . court as is made the municipal provided of fact necessary issue shall receive judge magistrate evidence Aguilar deviation from does determine the motion” not require the valid to determine rule and the affidavit itself our going beyond compel case. (seizure) of the search warrant in this ity re Giannini Inof fails to meet the requirements
Officer Serio’s affidavit 535], denied 395 (1968) 655, cert. Cal.2d 563 446 P.2d 69 Cal.Rptr. [72 223, 1743], which opinion L.Ed.2d S.Ct. holds expert U.S. 910 89 [23 obscene, in is contemporary that material testimony applying standard, would qua is a sine non. Even judges, statewide community without obscenity to determine the question are not competent appear, views were such testimony. Although my personal expert benefit 941, (1967) 947 People v. Pinkus 256 Cal.App.2d Supp. expressed Giannini, supra. (Auto In re 680], feel bound I now Cal.Rptr. [63 Sales, 450 (1962) Court Cal.2d Inc. v. 57 Equity Superior [20 cause here we with 321, 937].) fact that deal only P.2d The 369 testimony expert opinion does not eliminate the competent requirement to what as at the extent of informing least to my opinion, has not is. Officer Serio standard community statewide contemporary It in this regard. as an himself expert set forth facts sufficient qualify States of the United even when justices is not an task to so qualify easy unclear.1 of obscenity criteria find the constitutional Court Supreme 184, L.Ed.2d (1964) U.S. 197 1Stewart, concurring [12 378 Jacobellis v. Ohio J. to define the today attempt further 803-804, 1676, “I shall not 1683]: S.Ct. 84 22 obscene
demarcation between what is and what is constitutionally protected (Bantam is at best a “dim and line” Books v. Sullivan uncertain Furthermore, 584, 590, 637]). U.S. L.Ed.2d S.Ct. [9 within the Serio’s “is obscene Officer motion language picture of the Penal Code of the State of California and meaning opinions the United States strikes me as a studied circumvention Court” Supreme which fact our State Court and their opinions teachings, in the oral becomes his statements made cross-examination patent upon other than affidavit insufficient testimony received issues his being on its face. and the (seizure)
Thus the search warrant was invalid in my opinion seizure of the this con- film under that warrant reached Having illegal. clusion, it is the other raised by consider unnecessary parties, points other than the of the mandamus availability proceeding.
The mandamus should be available under the circumstances of this case. The method of and return of the films seized as section prescribed by Code, 1538.5 the Penal analyzed detail by the court’s opinion, inadequate in this provide remedy speedy First Amendment area which is Freedman required by Maryland (1965) U.S. 51 L.Ed.2d S.Ct. Use of remedies other than 734]. the Penal Code section 1538.5 sub- procedure reserved expressly (n) division of section It 1538.5. contained in provides part: “Nothing *20 this section shall motion, from prohibit person making otherwise law, permitted by to return brought on the property, ground that obtained is property protected by free and speech press provisions the federal and state constitutions.”
A
for a
petition
8,
rehearing
1970,
was denied
and
July
the petition
for a
plaintiffs
appellants
Court was
11,
denied
J.,
Peters,
Mosk,
1970.
September
J.,
were of the opinion
should be
petition
granted.
kinds of material
I
understand
be embraced within that
description
shorthand
,and
[hard-core pornography];
perhaps I could
intelligibly doing
never succeed in
so.
it,
But I know it when l see
picture
motion
involved in this case is not that.”
(Italics added.)
Harlan,
dissenting
J.
(1966)
413,
in Memoirs v. Massachusetts
U.S.
[16
26,
1,
L.Ed.2d
emerges
S.Ct.
“The
996]:
central development
from the
States,
aftermath of Roth v. United
1304],