(dissenting) :
I respectfully dissent and would adopt the view taken by the circuit judge in his order, which reads as follows:
ORDER OF JUDGE MOORE
This matter was before the Court on September 29, 1977 when the above styled cases were called for trial. The State was represented by Michael L. Rudasill, Assistant Solicitor for the Seventh Judicial Circuit. The defendants were represented by Will Dunn and Glenn Zell. Mr. Zell moved the Court in the form of a joint motion regarding all of the above styled defendants, to suppress the films seized at the •time the defendants were arrested.
Testimony was presented by the State concerning the facts and circumstances surrounding the arrest of the above styled defendants and the seizure of films at the time of arrest. The testimony taken from the police officers established that all of the arrests were made without a warrant and that films were seized at the time of arrest.
Section 16-15-210(b) South Carolina Code of Laws, 1976 provides that a peace officer may arrest a person for exhibiting or distributing obscene matter when such offense is committed in his presence without having a warrant. Said section further provides that “such officer is empowered to seize without warrant any obscene matter found in possession of or under the control of the person so arrested.”
*469Section 16-15-210(d) provides for a hearing, if requested, within ten days after seizure of such matter, to be held within three days to determine whether or not reasonable grounds exist to believe such matter is obscene. None of the defendants requested a hearing for such a determination.
The testimony clearly establishes that the defendants were aware of the efforts by the Spartanburg County Sheriff’s Department to stop the distribution of obscene matter. A system of communication existed between the various stores so that personnel arested in one store would warn the personnel in other stores. One officer, while working undercover in one of the stores, was accosted by a patron of that store. The movies seized were exhibited on projectors which were modified to accept a plastic container housing the film. It merely slid into the top of the projector and was easily removed. The officers further testified that they were unarmed and apprehensive while in the stores. All of these factors clearly establish exigent circumstances making the officers’ actions in seizing the films reasonable.
Therefore, the motion to suppress the seizure of the films at the time of the arrests of the above styled defendants is denied and
IT IS SO ORDERED.
In my view, the seizure of the evidence, admittedly pornographic, was not unreasonable under the circumstances. In Roaden v. Kentucky, cited in the majority opinion, the United States Supreme Court said:
The Fourth Amendment proscription against “unreasonable . . . seizures,” applicable to the States through the Fourteenth Amendment, must not be read in a vacuum. 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. . . .
Where there are exigent circumstances in which police action literally must be “now or never” to preserve the evi*470dence of the crime, it is reasonable to permit action without prior judicial evaluation.
In Heller v. New York, cited by the majority opinion, the United States Supreme Court said:
This Court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. ...
In both Roaden and Heller, there was involved the closing down of an entire theater’s operation. The facts in this case are greatly different, requiring a different result, without doing violence to the constitutional prohibition. Here we have involved cartridge-like films intended to be viewed by one person at a time through a coin-operated projector. There were a number of these “peep show” booths, with different films in operation at each establishment, in addition to books and magazines being offered for sale. There was no regularly scheduled showing to large segments of the public.
The trial judge heard the motion to suppress and found that these defendants had a system of communication between the various stores, designed to thwart the efforts of the police officers. There was obviously a conspiracy to violate the pornography law and prevent arrest by cooperating with each other. The plastic containers, housing the film, were found to be “easily removed.”
I agree with the trial judge, who held that the seizure of the film was reasonable because of the exigencies of the circumstances.