THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; HAROLD FREEMAN et al., Real Parties in Interest.
L.A. No. 30363
In Bank
Apr. 22, 1975.
Joseph P. Busch, District Attorney, Harry B. Sondheim and Sterling S. Suga, Deputy District Attorneys, for Petitioner.
No appearance for Respondent.
Fleishman, McDaniel, Brown & Weston, David M. Brown and John H. Weston for Real Parties in Interest.
OPINION
MOSK, J.---Defendants, real parties in interest herein, were charged with conspiracy to violate
In Flack v. Municipal Court (1967) 66 Cal.2d 981 [59 Cal.Rptr. 872, 429 P.2d 192], we considered whether seizure of motion picture film alleged to be obscene without a search warrant or prior judicial determination of obscenity violates the
The United States Supreme Court has recently reiterated these same principles. In Roaden v. Kentucky (1973) 413 U.S. 496 [37 L.Ed.2d 757, 93 S.Ct. 2796], a county sheriff viewed a sexually explicit film at a local drive-in theatre, determined it to be obscene, and in the course of arresting the defendant seized a copy of the film as evidence. The court proceeded from the premise that “A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material. [Citation.]” (Id. at p. 501 [37 L.Ed.2d at p. 763].) Thus “The seizure of instruments of a crime, such as a pistol or a knife, or ‘contraband or stolen goods or objects dangerous in themselves,’ . . . are to be distinguished from quantities of books and movie films when a court appraises the reasonableness of the seizure under Fourth or Fourteenth Amendment standards.” (Id. at p. 502 [37 L.Ed.2d at p. 763].) In applying the special rules governing seizure of allegedly obscene materials the majority reaffirmed the holdings in Marcus, Quantity of Books, and Lee Art Theatre v. Virginia (1968) 392 U.S. 636 [20 L.Ed.2d 1313, 88 S.Ct. 2103],4 and concluded: “If, as Marcus and Lee Art Theatre held, a warrant for seizing allegedly obscene material may not issue on the mere conclusory allegations of an officer, a fortiori, the officer may not make such a seizure with no warrant at all.” (Id. at p. 506 [37 L.Ed.2d at p. 766].)
The case at bar is controlled by the dictates of Flack and Roaden. Defendants herein were engaged in a continuing enterprise involving the preparation and distribution of sexually explicit material. They were contacted at their permanent business office, the “Hollywood House of
While Freeman and the officer were discussing film, defendant Horne collected various samples for the buyer‘s perusal. Freeman handed the officer an album of still photographs, apparently containing memorable moments from some of the more explicit productions. Horne arrived back at the office with a cart containing boxes of film, one of which was placed on a reel-to-reel viewer. At this point Horne told Freeman that he thought “there was some cops downstairs--or hanging around downstairs.” Freeman then told him “to take the stuff back” and Horne left the office with the films and the hand cart.
After Horne‘s withdrawal the film on the viewer was played for Deputy Young. The film was run at three times normal speed and without sound, but these limitations did not appear to detract from the officer‘s ability to ascertain its central theme. After viewing the film the deputy concluded it was obscene, arrested Freeman, and seized the film and the album of still photographs. At a prearranged signal five or six other deputies entered the office and conducted a thorough search of the premises. Apparently the theory of each officer was, in paraphrase of Justice Stewart‘s pithy expression, “I know it when I seize it.” (See 4 Loyola L.Rev. (1971) 9, 52-65.)
While these events were transpiring Horne was taking the remainder of the film to an automobile parked outside the building. He placed the boxes in the trunk and back seat of the car, then “drove around in circles” for 10 to 15 minutes. At all times he was under surveillance by officers stationed outside Freeman‘s office. Horne then returned to the office and was himself arrested. The officers conducted a complete search of the car and seized the aforementioned film canisters from the trunk and back seat.
The evidence sought to be suppressed includes the film viewed by Deputy Young, the film seized from the car, and the album of still photographs. At no time was a warrant obtained for the seizure of any of these items.
Golden is clearly inapposite. There the issue was not the warrantless seizure of suspected obscene material but rather the legal sufficiency of the affidavit pursuant to which a warrant was issued by the intervening magistrate. The purported admission of the defendant during a clandestine transaction, coupled with other evidence of possession of obscene material with the intent to distribute, were held by a divided court to be sufficient to support the issuance of the warrant.
In Burnstad a warrant had also been obtained. There an undercover officer had viewed certain of the defendant‘s films and arranged a meeting in order to purchase them. Prior to the meeting a warrant was issued authorizing the search of two locations and the seizure of the films the officer had viewed. However, in executing the warrant the officer seized a number of films not named in the warrant. In upholding the validity of this latter seizure the court distinguished Flack on the ground that “Here the defendant had himself placed the mark of contraband on the films. In all his dealings with Officer Dixon, defendant had pandered all of his films as ‘hardcore’ pornography.” (32 Cal.App.3d at p. 565.)
While a warrant was obtained in that case, to the extent that Burnstad can be said to stand for the proposition that the warrant requirement of Flack and Roaden is rendered unnecessary by a defendant‘s own pejorative characterization of the material it is hereby disapproved. Theatre marquees, billboards and newspaper advertisements all too often appeal to base instincts by making extravagant claims concerning the licentiousness depicted on movie screens, yet no serious claim could be made that mere suggestive or disparaging descriptions justify a warrantless seizure of the films.5 Whatever reaction might be
Nor does Ginzburg v. United States (1966) 383 U.S. 463 [16 L.Ed.2d 31, 86 S.Ct. 942], relied upon in Burnstad, compel a different conclusion. In Ginzburg the defendant went to extraordinary lengths to sell his publications on the basis of their prurient appeal, such as obtaining mailing permits from communities with sexually suggestive names and stressing in advertising circulars the erotic nature of the material. The Supreme Court held that in a close case evidence of commercial exploitation of erotica solely on the basis of its sensual appeal may be determinative: “Where the purveyor‘s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. . . . [B]y animating sensual detail to give the publication a salacious cast, petitioners reinforced what is conceded by the Government to be an otherwise debatable conclusion.” (Id. at pp. 470-471 [16 L.Ed.2d at p. 38].)
That a defendant‘s characterization of his material in the course of an attempted sale may be considered ultimately by the trier of fact at an obscenity trial in no way compels a conclusion that an investigating police officer may regard these purported admissions as authority to dispense with the necessity to obtain a warrant. The issue of obscenity is a complex legal question, to be decided by judges and magistrates. Motion pictures, even those suspected of being obscene, are presumptively protected by the First Amendment and may not be seized by police officers without a judicial determination that there is probable cause to believe the subject material falls outside the purview of that amendment.6
There is one narrow exception to this strict warrant requirement, the so-called “emergency exception.” In Flack we stated, “We conceive of a legitimate emergency arising in arrest situations involving a high probability that evidence may be lost, destroyed, or spirited away. The one-night surreptitious screening of a film at a locked-door ‘stag’ party may under appropriate circumstances justify seizure without a warrant.”
The exception under consideration is extremely limited, and the People must sustain a considerable burden in demonstrating its applicability. Even in the ordinary case of a warrantless search this burden exists (Badillo v. Superior Court (1956) 46 Cal.2d 269, 272 [294 P.2d 23]), but the First Amendment demands the most restrictive rules where the search relates to presumptively protected material. (Flack, at p. 991 of 66 Cal.2d.) Thus in order for the exception to be operative the People must show there was probable cause to believe the material was obscene and their opportunity for seizure was limited to “now or never.”
In the instant case neither burden is met. The canisters of film seized from the car were never seen by any of the officers, and aside from Freeman‘s representations they had no inkling as to their contents. Serious doubts may be entertained as to whether this evidence would even be sufficient to support the issuance of a warrant. (See Lee Art Theatre v. Virginia (1968) supra, 392 U.S. 636, 637 [20 L.Ed.2d 1313, 1315].) In addition, Freeman‘s operation was not the one-night surreptitious screening envisaged in Flack but rather a continuing enterprise replete with office, secretary, reception room, and all the trappings of a permanent business arrangement. There appears no reason why Deputy Young could not have viewed the films, presented a sufficiently detailed affidavit to a magistrate, and returned to Freeman‘s office armed with a warrant for their seizure.8
The People next seek to justify the warrantless seizure of the films from Horne‘s automobile on the rationale of People v. Dumas (1973) 9 Cal.3d 871 [109 Cal.Rptr. 304, 512 P.2d 1208]. The argument illustrates a misconception which pervades this entire area: the equation of presump-
It is thus clear that two independent factors must coexist for the Dumas rationale to become operative: probable cause and exigent circumstances. Neither is present here. As discussed ante, the substantiality of Freeman‘s business operation rebuts the contention that seizure of the film was a “now or never” operation. It is also apparent there was no probable cause to believe the film was obscene. If Horne‘s hand cart had contained narcotics or weapons, the officers arguably would have been justified in searching the automobile to recover this contraband. Instead the items seized were canisters of film, never viewed by any of the officers and still shrouded in the protective cloak of the First Amendment. As made abundantly clear in Flack and Roaden, this type of material can never be considered contraband absent a judicial determination that there is probable cause to believe the material falls outside the constitutional protection. Accordingly, the seizure of the film in the automobile cannot be justified on any of the traditional Fourth Amendment exceptions relating to warrantless seizures of contraband, such as the “plain view” theory, the Dumas rationale, or the doctrine allowing limited search and seizure incident to arrest.9
The correct rule was stated in Fixler v. Superior Court (1974) 38 Cal.App.3d 475 [113 Cal.Rptr. 285]. There the question was whether a warrant for the seizure of two specifically named magazines authorized seizure of apparently similar magazines not named in the warrant. The court stated, “The trial court held that the total seizure was lawful in reliance on cases (such as Skelton v. Superior Court (1969) 1 Cal.3d 144 . . .) which allow the seizure of ‘contraband’ legitimately seen by officers while conducting a lawful search for other items. But we know of no authority that extends that rule to the seizure of matter which lies within the special protection of rules developed under the First Amendment. In fact, the cases which we have found hold that, where an item is sought which may turn out to be protected by the First Amendment, no seizure may be made without the express authority of a magistrate.” (Fn. omitted.) (38 Cal.App.3d at p. 481.)10
As the seizure in this case was unlawful the trial court was correct in suppressing the evidence. The alternative writ of mandamus is discharged and the peremptory writ is denied.
Wright, C. J., Tobriner, J., and Sullivan, J., concurred.
RICHARDSON, J.---I respectfully dissent. In the majority view the case before us is “controlled” by two decisions, Roaden v. Kentucky, 413 U.S. 496 [37 L.Ed.2d 757, 93 S.Ct. 2796] and Flack v. Municipal Court, 66 Cal.2d 981 [59 Cal.Rptr. 872, 429 P.2d 192]. Both of these cases expressly, although in somewhat different phrasing, confirm that police officers may seize, without a warrant, movie films which they reasonably suspect are obscene if “exigent circumstances” exist which indicate that the films may be “lost, destroyed, or spirited away.” (66 Cal.2d at p. 991, fn. 10; see, 413 U.S. at p. 505 [37 L.Ed.2d at p. 765].) The record discloses that the officers in question had reasonable cause to believe that the films ultimately seized were obscene, and that exigent circumstances justified the seizure.
While Freeman and Young were in defendant‘s office defendant Horne came under the surveillance of Deputy Sheriff McFee outside the building and was observed to move assorted film boxes from a 1969 Cadillac placing them in a handtruck and returning to the building which housed defendant‘s office. Five or ten minutes later Horne exited the same building with the same handcart and with “most of the film in boxes that were on there when he took them out of the Cadillac.” Horne was seen to push the cart to a parked 1962 Chrysler, open the trunk put some of the “silver cans” in the trunk and the boxes into the back seat. Then, according to McFee, “[h]e jumped in the car and left hurriedly.” Horne then for ten to fifteen minutes drove the Chrysler, making “several circles around several blocks,” and returning to park approximately one-half block from where the car had been parked originally. Horne then returned to the office followed by McFee.
McFee was then told by Young that when Young first arrived at the office Horne came in with some items and that while he was there the other defendant told him to “get this stuff out of here.” Young also told McFee that he had placed both Freeman and Horne under arrest. McFee then searched the Chrysler automobile with the use of keys given
From the foregoing rather extended factual recitation appearing in the record, I reach the following conclusions. First, Officer Young reasonably believed the films in question, containing as they did graphic illicit sexual activities, were obscene, both those which he viewed and those which were unviewed. Freeman‘s own characterization of them was clear and explicit. The sample album (Exhibit 1) furnished Young by Freeman, presumably as illustrative of defendant‘s inventory, confirms their general nature. The single film (Exhibit 2) which Young viewed amply reinforced his impressions. In the record the film‘s character both at the time of the meeting in defendant‘s office and subsequently, was established clearly and unmistakably.
Second, exigent circumstances existed which amply justified the officers in seizing the film in order to prevent its concealment or destruction. During his preliminary discussions with Young, Freeman told him that “he kept the films at another place; should the police come with a search warrant, they wouldn‘t find anything there.” Shortly thereafter, when Horne alerted Freeman to the suspicion that he “thought there was some cops downstairs--or hanging around downstairs,” Freeman immediately instructed Horne to “take the stuff back.” Horne then forthwith took the handcart containing all but one of the films selected for Young and left the room. He was then observed by McFee returning the film and placing them in a trunk of an automobile which he immediately drove away in a manner described by McFee as “hurried.” Horne‘s route in the car was a random and erratic one and it extended over several blocks. Upon his return he parked the car in a different area. Given Freeman‘s original declaration as to his arrangements to store the film elsewhere so that searching officers armed with a warrant would be frustrated, Freeman‘s direction to Horne to remove the material immediately when alerted that officers were near, and Horne‘s immediate disappearance with the film, the conclusion seems reasonable to me that “exigent” circumstances existed which indicated that the film was in imminent danger of being “lost, destroyed, or spirited away.” (Flack v. Municipal Court, supra, 66 Cal.2d at p. 991, fn. 10.)
While First Amendment protections affecting freedom of expression have been extended to motion picture films, Roaden and Flack nonetheless very expressly recognize the exception permitting seizure without warrant even of objects presumptively afforded First Amendment protection. The majority describe the exception as “narrow” or “extremely limited.” Regardless, however, of its characterization the exception contains only two essential ingredients---first, probable cause to believe the seized material was obscene, and second, exigent circumstances prompting a reasonable belief that the property seized is about to be moved beyond the reach of the officers. I suggest that on the record the magistrate was fully justified in concluding that probable cause existed to believe that the material being seized was obscene and that a “legitimate emergency” existed involving, in the language of Flack, a “high probability that evidence may be lost, destroyed, or spirited away.” (66 Cal.2d at p. 991, fn. 10.)
I would go further. Even if we accepted the majority‘s assumption that the officers lacked probable cause to believe the film viewed by Young
I would grant a peremptory writ of mandate to annul the order suppressing the evidence.
McComb, J., and Clark, J., concurred.
Notes
In Quantity of Books a four-judge plurality invalidated a Kansas warrant procedure for failure to afford the defendants a pre-seizure adversary hearing on the question of obscenity. This requirement was limited to cases involving “the seizure of large quantities of books for the sole purpose of their destruction” in Heller v. New York (1973) 413 U.S. 483, 491 [37 L.Ed.2d 745, 753, 93 S.Ct. 2789].