(dissenting). The disposition of this case which I think sound does not require an expression of opinion on the obscenity issue.
The weight of authority heavily supports the view that a motion picture film being held for public exhibition may not be seized except pursuant to a search warrant issued following an adversary hearing. The United States Court of Appeals for the second,1 third,2 fourth,3 seventh,4 and *124eighth5 circuits and a number of United States district courts have reached this result.6
The contrary authorities are decisions of United States district courts7 and two decisions of State intermediate appellate courts, one in California8 and one by another panel of this court.9
In four of the cases decided by the United States Courts of Appeals the films were seized, as here, at the same time that the defendants were arrested.10 If the police need not obtain a search warrant when they seize a film incident to an arrest, then they need never bother to obtain a warrant — all they need to do is seize the exhibitor as well as the film.
The Supreme Court of California has also rejected the contention that a motion picture film being-exhibited in a public theatre may be seized without a *125warrant as an incident to the arrest of the owner and one of his employees. The Court reasoned:
“Within the precinct of the First Amendment, only the requirement that a search warrant he obtained prior to any search or seizure assures a free society that the sensitive determination of obscenity will be made judicially and not ad hoc by police officers in the field. It has always been recognized that ‘the more important the rights at stake the more important must be the procedural safeguards surrounding those rights.’ (Speiser v. Randall [1958], 357 US 513, 520, 521 [78 S Ct 1332, 1339, 2 L Ed 2d 1460]).” Flack v. Municipal Court (1967), 66 Cal 2d 981 (59 Cal Rptr 872, 879, 880; 429 P2d 192, 199.)11
In several cases the judicial officer who issued the search warrant saw the film before he issued it; this was held not to satisfy the requirement that there he an adversary hearing.12 In any event, in this case the magistrate did not see the film, only the police officers who requested issuance of the warrant.
The people seek to distinguish Marcus13 and A Quantity of Books v. Kansas14 where the United States Supreme Court declared that a state may not seize publications allegedly obscene except pursuant to a search warrant issued following an adversary hearing conducted before the seizure, on the ground that in those cases a large number of publications were involved while here only a single film was seized. The asserted distinction elides the difference *126between seizing a single copy of a book and seizing a motion picture film:
“The restraint involved in seizing a single copy of a book is exceedingly small; the dealer will usually have additional copies that can be sold.
“A film, however, is not directed to a single purchaser; it is aimed at all those who would be in the audience on the days that the film is scheduled to be shown. * * * Preventing this number of persons from viewing a film is certainly equivalent to seizing all copies of a book from the newsdealers involved in A Quantity of Boohs [supra]; in the functional terms we must use to balance the interest in suppressing obscenity against that of ensuring distribution of nonobscene views, the restraint here * * * is, if anything, more substantial than the seizure of less than 2000 books. * * * [I] f the State wishes to interfere substantially with distribution of films or books, it must first provide, as we have been instructed, an adversary hearing capable of affording a ‘reasonable likelihood’ that nonobscene films or books will reach the public.” Astro Cinema Corp., Inc., v. Mackell (CA 2, 1970), 422 F2d 293, 295, 296.15
If, as has been suggested, the State fears that the film might be destroyed or the offending scenes eliminated before an adversary hearing can be held, it might consider obtaining an ex parte restraining order enjoining destruction.16
*127It has also been contended that unless the people can seize the film they will not be able to prosecute. See, however, Tyrone, Inc., v. Wilkinson (CA 4, 1969), 410 F2d 639, and Metzger v. Pearcy (CA 7, 1968), 393 F2d 202, where the exhibitor was required to deliver to the prosecuting attorney a print of the film for use in the trial or in preparation for trial.
Cambist Films, Inc., v. Duggan (CA3, 1969), 420 F2d 687, 689.
Tyrone, Inc., v. Wilkinson (CA4, 1969), 410 F2d 639.
Metzger v. Pearcy (CA7, 1968), 393 F2d 202.
United States v. Alexander (CA8, 1970), 428 F2d 1169.
Cambist Films, Inc., v. Tribell (ED Ky, 1968), 293 F Supp 407, 409 (three-judge court); Sokolic v. Ryan (SD Ga, 1969), 304 F Supp 213; Fontaine v. Dial (WD Tex, 1969), 303 F Supp 436 (three-judge court); Cambist Films, Inc., v. Illinois (ND Ill, 1968), 292 F Supp 185, 187; Mandell v. Carson (MD Fla, 1969), 309 F Supp 326, 328; Abrams & Parisi, Inc., v. Canale (WD, Tenn, 1969), 309 F Supp 1360; Bongiovanni v. Hogan (SD NY, 1970), 309 F Supp 1364.
See, e.g., Merritt v. Lewis (ED Cal, 1970), 309 F Supp 1254; Bazzell v. Gibbens (ED La, 1969), 306 F Supp 1057.
See, also, Entertainment Ventures, Inc., v. Brewer (MD Ala, 1969), 306 F Supp 802. The court ruled that an adversary hearing is not required if the magistrate views the film or makes a “constitutionally sufficient” inquiry into the officer’s conclusions, and local law provides for a prompt adversary hearing after the seizure. But see A Quantity of Books, infra, fn 14, pp 212, 213 and cases cited in fn 12, infra, and accompanying text.
People v. De Renzy (1969), 275 Cal App 2d 380 (79 Cal Rptr 777).
People v. Bloss (1969), 18 Mich App 410, 414, 415. That we are not bound by the opinions of our colleagues, see Warren v. Parole Board (1970), 23 Mich 754, 758, fn 4.
Bethview Amusement Corp. v. Cahn, supra; Astro Cinema Corp., Inc., v. Mackell (CA2, 1970), 422 F2d 293; Cambist Films, Inc., v. Duggan, supra; Metzger v. Pearcy, supra.
United States district court decisions recognizing that a prior adversary hearing is required even where the film is seized at the same time that the defendant is arrested include Sokolic v. Ryan, supra; Fontaine v. Dial, supra; Cambist Films, Inc., v. Illinois, supra; Abrams and Parisi, Inc., v. Canale, supra; Bongiovanni v. Hogan, supra.
Similarly, see Entertainment Ventures, Inc., v. Brewer, supra, p 809.
Tyrone, Inc., v. Wilkinson, supra, p 640; Astro Cinema Corp., Inc., v. Mackell, supra, p 294; Bethview Amusement Corp. v. Cahn, supra, p 411; United States v. Alexander, supra, p 1170.
Marcus v. Search Warrant (1961), 367 US 717 (81 S Ct 1708, 6 L Ed 2d 1127).
. 4 Quantity of Books v. Kansas (1964), 378 US 205 (84 S Ct 1723, 12 L Ed 2d 809).
A police officer testified at the preliminary examination that as far as he knew the seized film was the only copy available to the defendant, and that the film had not been exhibited at defendant’s theatre after the seizure.
See Bethview Amusement Corp. v. Cahn, supra, p 412; Astro Cinema Corp., Inc., v. Mackell, supra, p 296; Tyrone, Inc., v. Wilkinson, supra, pp 640, 641; Metzger v. Pearcy, supra, p 204.
In this case there is no reason to believe that the film would be destroyed. The theatre in question has been showing films with a sexual orientation for a number of years.
The trial judge, in his opinion, said, “Indeed, it is quite clear that_ defendant was cooperative with representatives of the people but it is a practical consideration [i.e., possible loss of the film] that should not be overlooked.”
*127The police officer who obtained the warrant testified at the preliminary examination that he had been on the vice squad for nine years, that defendant Johnson’s theatre had been showing adult films for three or four years, that during this period he had viewed films shown at defendant’s theatre and this was the first occasion on which he had approached the defendant to complain about a film being exhibited. The officer acknowledged that he would not have had any difficulty in locating the defendant to notify him that the police were going to request a search warrant.