[20] I respectfully dissent. In my view the majority opinion evades the requirements of the First Amendment as interpreted by the United States Supreme Court.
[21] While the State may prevent the distribution and exhibition of obscene matter, Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), the Fourteenth Amendment requires that regulation of obscenity by the State conform to the procedures that will insure against the curtailment of constitutionally protected expression. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). In Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), the United States Supreme Court held that the seizure under warrant of allegedly obscene publications violated due process of law, essentially "because there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity." 367 U.S. at 732, 81 S.Ct. at 1716. The court found this was an impermissible prior restraint violative of the First Amendment since there was not "a reasonable likelihood that nonobscene publications, entitled constitutional protection, will reach the public." 367 U.S. at 736, 81 S.Ct. at 1719.
[22] In Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), the United States Supreme Court reversed a conviction for exhibiting obscene motion pictures because the seizure of the films violated constitutional requirements. The films in question were seized under authority of a warrant issued by a justice of the peace on the basis of an affidavit of a police officer who viewed the full film. The affidavit for the warrant stated the titles of the motion pictures and that the officer had determined from personal observation of them and of the billboard in front of the theatre that the films were obscene. The court held:
"The admission of the films in evidence requires reversal of petitioner's conviction . . . The procedure under which the warrant issued solely upon the conclusory assertions of the police officer without any inquiry by the justice of the peace into the factual basis for the officer's conclusions was not a procedure, designed to focus searchingly on the question of obscenity' [Marcus v. Search Warrants, 367 U.S.] at 732, 81 S.Ct. at 1716, and therefore fell short of constitutional requirements demanding necessary sensitivity to freedom of expression." 392 U.S. at 637, 88 S.Ct. at 2104.
[23] It is apparent that the film in the instant case was seized without any procedure designed to focus searchingly on the question of obscenity. Since it was so seized, defendant's conviction violated the First Amendment and should be reversed under the rule of Lee Art Theatre.
[24] It would seem apparent that mere satisfaction of the Fourth Amendment's search and seizure requirements is not sufficient when the items seized are books and films *Page 243 within the protection of the First Amendment. In Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968), the court held that the police could not seize films as evidence of a pending obscenity prosecution without a prior adversary hearing. In so holding, the court said:
"The lesson of Books [378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964)] is that law enforcement officers cannot seize allegedly obscene publications without a prior adversary proceeding on the issue of obscenity. Such a seizure violates the First Amendment to the Constitution of the United States, and is a prior restraint condemned by the Supreme Court. In light of Burstyn [v. Wilson 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1962)] supra, Kingsley Pictures, [360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512], supra and Jacobellis, [378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793] supra these rules apply to motion pictures as well. Allegedly obscene publications or movies are not to be treated the same way as narcotics, gambling paraphernalia and other contraband." 393 F.2d at 204. (Emphasis ours)
[25] In Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2d Cir. 1969), the court held that the seizure of a motion picture film by police pursuant to a warrant was improper. After noting the possible viewing audience of a motion picture film, the court stated:
"Preventing so large a group in the community from access to a film is no different, in the light of first amendment rights, from preventing a similarly large number of books from being circulated." 416 F.2d at 412.
[26] In Glass v. District Court, 486 P.2d 1180 (Nev. 1971), the Nevada Supreme Court held that a film seized without a prior adversary hearing violated constitutional requirements and was subject to a motion to suppress. In so holding, the court stated:
"We regard it as settled that the First and Fourteenth Amendments require that there be an adversary judicial hearing and determination of obscenity before a warrant may be issued to search and seize the single copies of allegedly obscene films. Compliance with the proscriptions of the Fourth Amendment is not sufficient . . . Where one's First Amendment rights are exercised by exhibition, restraint clearly follows from seizure of the film to be exhibited." 486 P.2d at 1181.
[27] Similarly, the Supreme Court of Arkansas in Bullard v. State481 S.W.2d 363 (Ark. 1972), held that a prior adversary hearing was necessary before the seizure of an allegedly obscene motion picture film. In reversing the conviction for exhibiting an allegedly obscene motion picture film, it was held that the trial court erred in refusing to suppress as evidence the copy of the film, The Affairs of Aphrodite, that was seized by Constable Paul Jewell when he arrested Bullard." 481 S.W.2d at 365.
[28] Apparently every United States Circuit Court of Appeals to consider the question has held that there must be a judicial-adversary hearing on the question of obscenity prior to the seizure of a motion picture film from a theatre as evidence of an obscenity violation.1 Such a hearing would not cripple law enforcement and would serve the interests of free expression in a *Page 244 free society. To require such a hearing would not preclude prosecution. An ex parte restraining order or subpoena duces tecum could insure a film would not be transported out of the state before such a hearing could be held. Therefore I respectfully dissent to this decision in view of the United States Supreme Court's decisions interpreting the rights under the United States Constitution.