dissenting. Contrary to the approach taken by the majority in these cases, searches and seizures in connection with allegedly obscene material are not governed by the standards controlling searches and seizures with respect to narcotics, gambling paraphernalia, and other such contraband. Marcus v. Search Warrant (1961), 367 U. S. 717; A Quantity of Books v. Kansas (1964), 378 *33U. S. 205; and Freedman v. Maryland (1965), 380 U. S. 51; 5 A. L. R. 3d 1214, 1225.
As held by the majority of cases considering this issue, Ihe possessor of materials seized as being allegedly obsence is entitled to an adversary hearing on the issue of obscenity before his material can be classified and treated as contraband. See Leslie Tobin Imports v. Rizzo (1969), 305 F. Supp. 1135; Merritt v. Lewis (1970), 309 F. Supp. 1249. Newman v. Conover (1970), 313 F. Supp. 623; People v Kozak (1968), 56 Misc. 2d 337, 288 N. Y. Supp. 2d 692 Metzger v. Pearcy (1968), 393 F. 2d 202; Cambist Films v. Tribell (1968), 293 F. Supp. 407; Tyrone v. Wilkinson (1969), 294 F. Supp. 1330, affirmed 410 F. 2d 639; Wilhelm v. Turner (1969), 298 F. Supp. 1335, affirmed 431 F. 2d 177; Gregory v. Diflorio (1969), 298 F. Supp. 1360; Carter v. Gautier (1969), 305 F. Supp. 1098; Delta Book Distributors v. Cronvich (1969), 304 F. Supp. 662; Miske v. Spicola (1969), 314 F. Supp. 962; Engstrom v. Robinson (1970) 317 F. Supp. 124; Felton v. Pensacola (Fla. 1967), 200 So 2d 842; People v. Rothenberg (1967), 20 N. Y. 2d 35, 228 N. E. 2d 379; People v. Hughes (1969), 31 App. Div. 2d 235, 296 N. Y. Supp. 2d 671; Aday v. Municipal Court (1962), 210 Cal. App. 2d 229, 26 Cal. Rptr. 576. See, also, Jodbor Cinema, Ltd., v. Sedita (1970), 309 F. Supp. 868, where it was held that the seizure of an allegedly obscene motion picture film without a prior adversary hearing on the issue of obscenity was improper, even though, before issuance of the warrant for such seizure, the judge had personally viewed the film at the theater. And in A Quantity of Books v. Kansas, supra (378 U. S. 205), a state’s seizure of allegedly obscene books, where there was no prior adversary determination of their obscenity, was held to be unconstitutional.
While police officers are properly trained and qualified experts in the detection and proper identification of the usual paraphernalia of crime, they do not enjoy such a status with respect to the determination of the obscenity of literature and movies — a determination which, under Roth v. United States (1957), 354 U. S. 476, involves a subtle *34and all encompassing evaluation of the literary and artistic merits as compared with contemporary community standards. Determination by police officers of the status of suspected books and papers and movies as obscene is not enough protection to the owner or possessor of the material so as to comport with due process of law. See 5 A. L. R. 3d 1214, 1225. The holding of the majority today constitutes an unlawful delegation to the police of the plenary duty of the courts to so determine whether there is probable cause to believe the films obscene after all parties have had an opportunity to express and present to the best of their ability the Roth considerations.
Although the seizure of the films in question was incident to an arrest, the arrest itself — and hence the seizure —is invalid. In the absence of a prior judicial hearing to determine probable cause to believe the films obscene, the arrest is the product of the unlawful delegation of authority.
The majority has stated that:
“The seizures now before us were not made for the purpose of preventing the dissemination of that which the film contained. Quite the contrary, the single copies were taken for the purpose of preserving them in order that they might be used as evidence in proceedings to determine whether their exhibitors were guilty of committing a crime.”
In so limiting the holding of this case to the seizure of single copies of allegedly obscene films, the majority has apparently sought to align themselves with those decisions dealing with the limited evidentiary seizure of books and other materials. Such limited confiscation has been held to be reasonable accommodation of the constitutional right of speech, in that it authorizes a restricted method reasonably calculated to insure against total curtailment of constitutionally protected expression, so as not to create a “chilling effect.” In addition to the cases cited by the majority for this proposition, see People v. DeRenzy (1969), 275 Cal. App. 2d 380, 79 Cal. Rptr. 777; Rage Books v. *35Leary (1969), 301 F. Supp. 546; Overstock Book Co. v. Barry (1969), 305 F. Supp. 842.
Such an approach may be valid with regard to the seizure of books, magazines and other printed materials where the owner typically carries a large inventory of each different publication. In such case, seizure by the police of a few samples does not amount to an unconstitutional suppression of materials in violation of the First Amendment.
However, when dealing with a movie theater the seizure of even a single copy of a film may- — -and probably does —constitute a confiscation of the entire “inventory,” with result of an absolute suppression of the film. Even if a movie operator were to obtain and keep on the premises two copies of every film (an unreasonable burden in and of itself), after seizure of the initial copy by the police incident to the arrest of the movie operator, the operator would perhaps then be subject to a second (unlawful) arrest and seizure for exhibiting the second film, as a separate violation of R. C. 2905.34 (now R. C. 2905.35). The ultimate result is the same, either under the “one film seizure rule” adopted by this court, or a “five film” or “one hundred film” — or a “thousand film” — seizure rule; and, potential audiences of consenting adults are to be denied access to movies that are only deemed obscene by one or more police officers who may or may not properly apply the Both test in the determination of whether there is probable cause that the movie is obscene, and the arrest justified.6
It should be noted that the United States Supreme Court itself has granted certiorari in two cases which will hopefully establish whether the requirement of a pre-seizure adversary hearing is or is not an “unwarranted extension of the Supreme Court’s holdings,” as contended by the majority of this court. See Crim. Law Rep., April 26, 1972, and May 17, 1972, wherein the Supreme Court is stated to have granted certiorari in Roaden v. Kentucky, No. 71-1134, and Heller v. New York, No. 71-1043, respectively.