[29] OPINION ON PETITION FOR REHEARING
[30] In the District Court, 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 an Obscene Movie. His punishment was fixed at one (1) year imprisonment in the County Jail and he was assessed a fine of one thousand dollars ($1,000). From that judgment and sentence, a timely appeal was perfected to this Court in the above entitled cause. On July 5, 1973, appellant filed an application and petition for rehearing requesting this Court review our opinion of June 20, 1973. After a study of the new authority submitted by appellant in his petition, we have determined a review of the issues in this case is in order.
[31] The facts reveal that on June 19, 1971, defendant displayed the movie entitled "Touch Me" at the Sooner Theater, Oklahoma City, Oklahoma. On that date, two Oklahoma City police officers viewed approximately three-fourths of the film and at the conclusion of their observation, determined the film they observed to be an obscene film and that a crime had been committed in their presence. Upon concluding the film to be obscene, the officers proceeded to the projection booth, arrested defendant, and seized the film in question, all of which was done without a warrant.
[32] On appeal defense counsel argued the seizure of the film in the case at bench was not constitutionally reasonable submitting two fundamental assignments of error. First he submitted that under the circumstances, the officers' observations of the film and conclusions the film contained obscene matter, the exhibition of which constituted a crime committed in their presence, was not legally sufficient ground for arrest of defendant and seizure of the film. Second he submitted the seizure was unlawful as an adversary hearing on the content of the film was not conducted prior to the film's seizure. In our opinion of June 20, 1973, we rejected both of the above assignments of error setting forth our opinion which in substance stated a prosecution for the violation of obscenity laws should be governed by the same rules as a prosecution of any other alleged violation of the criminal code. Consequently, this Court held a police officer was able to observe a movie, competent to determine whether or not the movie contained obscene matter, and able to arrest the responsible parties for a violation of an obscenity statute committed in his presence. On June 25, 1973, five days following the issuance of the opinion in the above entitled cause, the Supreme Court of the United States handed down several decisions involving obscenity convictions, one of which Roaden v. Kentucky, U.S., 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), is directly in point with the issues in the case at bench.
[33] In Roaden, supra, the factual setting revealed the sheriff of Pulaski, Kentucky, accompanied by a district prosecutor, purchased tickets to a movie entitled "Cindy and Donna". The sheriff observed the film in its entirety, concluded the film violated a State obscenity statute, and at its conclusion, proceeded to the projection booth and arrested petitioner. Contemporaneously, and incidental to arrest without a warrant, the sheriff seized one copy of the film for use as evidence. Ultimately, defendant was charged with exhibiting an *Page 245 obscene movie and was later convicted. The defense moved to suppress the evidence arguing it to be the product of an unlawful seizure. On appeal, the United States Supreme Court narrowly defined the issue presented as follows:
"The question presented in this case is whether the seizure of allegedly obscene material, contemporaneous with and as an incident to an arrest for the public exhibition of such material in a commercial theatre, may be accomplished without a warrant."
[34] The Court held a police officer cannot seize a film without a warrant upon his conclusion the film is obscene as "nothing prior to seizure afforded a magistrate an opportunity to `focus searchingly on the question of obscenity.'" In Roaden, supra, the Supreme Court very specifically stated a seizure of a film purportedly containing obscene matter may not be made without a warrant. See Heller v. State of New York, U.S., 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), for the procedural guidelines in the issuance of a warrant in a case of this nature.
[35] Although this Court firmly believes the procedural requirements of due process should be applied uniformly to all offenses, not imposing a greater standard of reasonableness to one offense than another, the Mandate of Roaden, supra, requires the seizure of an allegedly obscene movie be incidental to a legally sufficient warrant. It is this Court's opinion our original opinion on this issue is founded upon a more reasonable application of the law of search and seizure; however, the Supreme Court of the United States has specifically stated in a case virtually identical to the case at bench the procedure this Court previously approved is not constitutionally sufficient. We reversed our position on this matter only for the reason the highest court in this land, by its Mandate, has compelled us to do so. Therefore, the conviction is reversed and remanded with instructions to dismiss.