[1] OPINION
[2] In the District Court of Oklahoma County, Case No. CRF-71-1432, appellant, Vernal C. Melton, hereinafter referred to as defendant, was charged, tried and convicted for the offense of Exhibiting Obscene Movies. His punishment was fixed at one (1) year imprisonment in the County Jail and he was assessed a one thousand dollar ($1,000) fine. From that judgment and sentence, a timely appeal has been perfected to this Court.
[3] The facts revealed on June 19, 1971, the defendant, owner of the Sooner Theater, Oklahoma City, Oklahoma, displayed the movie entitled "Touch Me." On that date, two Oklahoma City Police Officers viewed three-fourths of the film, arrested the defendant, and seized the film. Out of this transaction, the defendant was originally charged with a felony and upon the defendant's motion, the Information was amended charging the offense under authority of 21 O.S. 1971 § 1040.8[21-1040.8], reducing the charge to a misdemeanor.
[4] Before deciding the issues raised in counsel's brief, we note the defense does not argue the content of the film "Touch Me" is not obscene. From the record and film, this Court has determined the film "Touch Me" is hard core pornography with it unnecessary to elaborate on its content.
[5] The defense in its first proposition submits two assignments of error. First, he suggests the seizure of the film was unlawful as the officers who viewed the film did not view the film in its entirety. Second, he argues the absence of an adversary hearing and judicial determination of obscenity prior to the seizure of the film resulted in the film being taken as evidence contrary to law invoking the exclusionary rule and rendering the evidence inadmissible.
[6] In the case at bench, noting the above mentioned activities portrayed in the film and this Court's conclusion the film *Page 240 to be hard core pornography, this Court finds the fact the officers did not view the film in its entirety did not render the evidence inadmissible in the instant prosecution. The acts displayed were not simulated acts, but graphic portrayals of sexual intercourse, sodomy, and other unnatural sex acts. These acts were viewed in the portion of the film observed by the officers. This Court is of the opinion the remaining portion of the film could not redeem those acts observed by the officers as the portion of the film reviewed was sufficient to constitute a crime committed in his presence. Although it goes without saying the better practice in circumstances such as the instant case would be to view the film in its entirety, the officers' viewing of approximately three-fourths of the film, in light of its content, did not render the evidence inadmissible in this prosecution.
[7] In support of defendant's second contention; that a prior adversary hearing with a judicial determination of whether or not the film was an obscene film is a mandatory prerequisite to a seizure of a film alleged to be in violation of the obscenity laws, several lower federal court decisions are submitted. In substance these decisions hold that obscene material seized in connection with state arrests and prosecutions which do not involve a preliminary determination of their obscenity will be suppressed as evidence in such pending prosecutions. The rationale in these decisions is predicated upon the U.S. Supreme Court decisions of Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), and A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964). It is this Court's opinion the lower federal decisions are unjustified extensions of Marcus, supra, and Books, supra, and we decline to follow them as we find them conflicting with decisions of the Supreme Court.
[8] In the case of Times Film Corporation v. City of Chicago,365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403 (1961) the United States Supreme Court held censorship of obscene matter is not per se unconstitutional. In clarification of this rule in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965) the court stated as follows in clarification of Times Film, supra:
"The administration of a censorship system for motion pictures presents peculiar dangers to constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding puts the initial burden on the exhibitor or distributor. Because the censor's business is to censor, there inheres the danger that he may well be less responsive than a court — part of an independent branch of government — to the constitutionally protected interests in free expression. And if it is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor's determination may in practice be final."
[9] In light of Freedman, supra, and the remedy made available inMarcus, supra, and Books, supra, we find the case at bench clearly distinguishable from the rule imposed in Marcus, supra, and Books, supra, and the request of an adversary hearing not applicable to this criminal prosecution. The burden of proving the matter obscene in a criminal prosecution is clearly upon the State. Thus, the procedure in a criminal prosecution is clearly distinguishable from the statutory provisions and procedures held invalid in Marcus, supra, and Books, supra, as those procedures in effect place the burden upon the proprietor who distributed the matter to prove them not to be obscene. Further, the remedy imposed in Marcus, supra, and Books, supra, was a return of the materials to the shelves for sale. In the instant case a return is not requested as the defense is requesting suppression of the evidence for a collateral civil procedural violation. Finally, the rationale in Marcus, supra, andBooks, supra, is predicated upon a first amendment violation personal to the general public. It in no way touchs upon the application to *Page 241 defendant's fourth amendment right as defendant's fourth amendment rights are the rights in issue. Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1966). The defendant has no standing to invoke a possible violation of the public's first amendment right as it is not personal to him. He must look to the fourth amendment protections which are personally his. Consequently, as in all criminal proceedings, the seizure of evidence of a crime, including crimes involving obscenity, presents primarily a fourth amendment problem rather than a first amendment problem. The fourth amendment provides as follows:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
[10] In the case at bench the seizure was pursuant to an arrest without a warrant. The contention of defendant that the arrest is invalid has been previously resolved as a valid arrest. The offense was committed in the presence of the police officers, the evidence seized was obviously in their view. There is no constitutional requirement an arrest for a violation of obscenity laws be conducted in a different manner than other offenses. The due process requirements are the same in each instance.
[11] Title 22 O.S. 1971 § 196[22-196], the authority for an arrest without a warrant, states as follows:
"Arrest without warrant by officer. A. peace officer may, without a warrant, arrest a person:
"1. For a public offense, committed of attempted in his presence
"2. When the person arrested has committed a felony, although not in his presence.
"3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.
"4. On a charge, made upon reasonable cause, of the commission of a felony by the party arrested."
[12] The seizure of the above materials was justified under Section 1 of the above statute. Only so much of obscene material taken for preservation of evidence for prosecution was seized. The seizure was reasonably designed to preserve evidence and affect the above purpose in compliance with Chimel v. California,395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and the seizure did not violate defendant's fourth amendment right which protects him against unreasonable searches and seizures. The seizure was reasonable in the case at bench.
[13] We, therefore, find the defendant's first proposition to be without merit. To not permit an obscenity prosecution to be initiated by a police officer upon viewing a questionable movie would render enforcement of the criminal laws applicable to exhibiting obscene movies completely unenforceable. Movie film is of such a character that it could be easily altered after notice of an adversary hearing as served upon the proprietor of the theater, and prior to the hearing upon the movies content. Therefore, to require an adversary hearing would completely stifle prosecution under this section of the criminal code. For this additional reason we determine it was not the intent of the Supreme Court in Marcus, supra, and Books, supra, to require a prior adversary hearing in a criminal prosecution of this nature.
[14] In defense counsel's second proposition it is submitted the obscenity definition in 21 O.S. 1971 § 1040.12[21-1040.12], is unconstitutional. In the case of Cherokee News Arcade, Inc. v. State, Okla. Cr. 509 P.2d 917 (1973), the Court stated as follows:
"As noted the Oklahoma Statutes considered here define `obscene' using almost *Page 242 the identical language of the Roth decision. 21 O.S. 1971 § 1040.12[21-1040.12] and § 1040.9. It is true that the statutes do not mention the `social value' element or specify that the contemporary community standard is a `national' standard. However, the mere absence of such further detailment of the obscenity test in the statute does not render it unconstitutional since the crucial factor is whether the appropriate standard is employed in deciding a particular case."
[15] In studying the court's Instructions, we note that all elements of the Roth test were submitted to the jury. Consequently, the appropriate standard was employed in deciding this case. Therefore, we find this proposition to be without merit.
[16] The judgment and sentence is affirmed.
[17] BUSSEY, J., concurs.
[18] BRETT, J., dissents.