The business of this court is too heavy to take the time and riiake a law review article of my dissenting view with respect to the validity of the search warrant that was used to ransack defendant’s home and remove, therefrom 91 reels of film and 162 “booklets.” I will therefore content myself to outline my understanding of applicable law.
1. I have serious doubts that even if the subject matter of the seizure were ordinary contraband, rather than material which is prima facie protected by the First Amendment, there was probable cause to believe that anything would be found in defendant’s home. As I interpret the facts all that the magistrate knew, through the affidavit, was that a person whom an unidentified reliable informant had pointed out to an unnamed employee of the F.B.I. as a seller of obscene matter from the back of his oar, had left his home carrying a box which he put in the trunk of a car from which trunk four reels of film were later taken by another man, who then went to some pains to conceal them. In addition, of course, there was the snatch of conversation overheard by Officer Monnett.1 This was followed by Ray giving defendant some money. We do not know whether this was in payment for the films Ray had just received or was given to enable defendant to purchase more films. Nor is it clear whether defendant’s description of something—presumably films—referred to the ones he had handed Ray or to others he was about to buy. Certain is that the former were no longer in defendant’s home, if they had ever been there, and that the observations by the two officers did not justify anyone in believing that after defendant left the gas station he had acquired additional films, which would be found in his home.
We have all handled enough narcotics cases and thus gained knowldege *219of the habits of peddlers, that we may perhaps reasonably suspect that such a person who deals a small amount of merchandise from his home, has more where it came from. I confess to no comparable knowledge when it comes to smut, nor does the record contain any expert evidence on the point.
2. More important, however, I think the court’s opinion puts the cart before the horse when it concludes that no First Amendment problem is involved because this case involves the distribution and sale of obscene matter or alternatively, that all we have been told by the series of Supreme Court cases both federal and state, which have adverted to the problem of how to search for and seize alleged obscene matter, is that a “stronger” showing of probable cause before a magistrate is required when books and films are involved.2 Surely what the Supreme Court cases teach us is that when the police and the courts deal with material presumably protected by the First Amendment, different procedures are called for.
I do not claim that it is or should be the law that a search warrant for books and films, can only issue after an adversary hearing. I do, however, maintain that it should not be the law—and no case I have seen has ever so held—that such materials can be seized on the order of a magistrate who knows nothing whatever about them except that the person whose home he permits to be invaded has made a statement indicating some connection with motion pictures depicting sexual activity.3
There is, of course, an obvious difference between this case where the warrant authorized a mass seizure of material falling within its broad description, and the several California cases relied on by the People which directed the seizure of specific allegedly obscene matter (Monica Theater *220v. Municipal Court, 9 Cal.App.3d 1 [88 Cal.Rptr. 71] [one copy of one film and specific photographs]; People v. de Renzy, 275 Cal.App.2d 380 [79 Cal.Rptr. Ill] [two reels of a specific film])4 in which it was held that a prior adversary hearing was unnecessary.
Whether or not these cases will eventually pass scrutiny by higher courts5 does not concern me, for it is emphatically clear that they differ from the case at bar in two major respects: first, what the warrant here directed and what the police carried out was not the seizure of a single copy of a specifically designated item, but truly a mass seizure;6 second, there was not even an ex parte hearing on the question whether the items to be seized were obscene.
One simply cannot approach this case as if the validity of the warrant presented but a Fourth Amendment problem. It may be conceded for the sake of argument that if defendant had been suspected of peddling dope instead of smut, reasonable cause to believe that he was in possession of contraband did exist. However, what relevant Supreme Court decisions have made clear is that the seizure of films and reading matter presents a First Amendment problem. (Marcus v. Search Warrant, 367 U.S. 717, 730-731 [6 L.Ed.2d 1127, 1135-1136, 81 S.Ct. 1708]; Flack v. Municipal Court, 66 Cal.2d 981, 989-990 [59 Cal.Rptr. 872, 429 P.2d 192].)
In considering this problem one must, of course, forget that the successful execution of the warrant did expose defendant as a peddler of hard core pornography. Defendant is not the first of his ilk whose “vindication” has preserved the First Amendment rights of others. As another division of this court said in a very similar case when it felt constitutionally bound to rule in favor of an alleged pornographer: “In reaching this conclusion it *221has been necessary for us to cling steadfastly to the basic truth stated in Judge William C. Mathes’ aphorism ‘that the rights of good men are secure only so long as the rights of bad men are also protected.’ ” (Aday v. Municipal Court, 210 Cal.App.2d 229, 249 [26 Cal.Rptr. 576].)
It would be tedious to retrace, once more, the history of Supreme Court decisions dealing with the validity of warrants directing the seizure of matter allegedly obscene. It is sufficient to refer to our Supreme Court’s review in Flack v. Municipal Court, 66 Cal.2d 981 [59 Cal.Rptr. 872, 429 P.2d 192].
Admittedly no case has been found precisely on all fours with the one at bar, but I strongly suspect that the reason for this lack of authority is that no such sweeping attempt to empty a man’s home—or, for that matter, his place of business—has ever been made on so little evidence that obscene materials would be found.
The problem is not whether an experienced vice officer could reach a reasonable conclusion that material such as was described in the affidavit would be precisely what the search would reveal. The question is, rather, whether on such evidence a magistrate could order the seizure of material which could be constitutionally protected, and which no one had even described to him. As the Supreme Court said in Flack: “Although Marcus, Quantity of Books and Stanford [v. Texas, 379 U.S. 476 (13 L.Ed.2d 431, 85 S.Ct. 506)] all dealt with search warrants issued under civil rather than criminal proceedings, [footnote omitted] their common thread seems clear: since obscenity is often separated from constitutionally protected expression by only a ‘dim and uncertain line’ (Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58, 66 [9 L.Ed.2d 584, 590, 83 S.Ct. 631]), purported obscenity maintains, until such time as it is judicially determined to be unprotected speech, the same ‘preferred position’ as does free speech generally (Murdock v. Pennsylvania (1943) 319 U.S. 105, 115 [87 L.Ed. 1292, 1300, 63 S.Ct. 870, 146 A.L.R. 81]), and the ordinary rules of search and seizure are inapplicable to it. Thus, allegedly obscene material cannot be treated in the same manner as contraband such as narcotics and burglar tools for purposes of search and seizure. (Marcus v. Search Warrant (1961) supra, 367 U.S. 717, 730-731 [6 L.Ed.2d 1127, 1135-1136, 81 S.Ct. 1708].)” (Flack v. Municipal Court, supra, 66 Cal.2d at pp. 989-990.)
Compare the present case with A Quantity of Books v. Kansas, 378 U.S. 205 [12 L.Ed.2d 809, 84 S.Ct. 1723], There the information, the legal equivalent of an affidavit in support of a search warrant, identified 59 novels, each of which was published as a “Nightstand” book. Seven of the *222novels were submitted with the information. A judicial officer held an ex parte hearing in which he examined the seven books. He came to the reasonable conclusion that all “Nightstand” books would be similar and ordered the seizure of all 59 titles, 31 of which were actually found; 1,715 copies were seized. The warrant included a notice of a hearing to be held 10 days later, as required by the applicable Kansas statute.
The procedure was held to be unconstitutional as an invalid prior restraint on the distribution of matter which presumptively was protected by the First Amendment. The court made no distinction between the seven titles which had been subjected to judicial scrutiny before the issuance of the warrant, and the others. It did not even consider the question whether the books were, in fact, obscene. (See also Marcus v. Search Warrant, 367 U.S. 717, 738 [6 L.Ed.2d 1127, 1139, 81 S.Ct. 1708].)
What differences there are between Quantity and this case, all favor the former: there there was at least an ex parte scrutiny of seven titles and the Kansas statute entitled the person from whom the matter was seized to a hearing in a shorter time than any statute of this state guarantees.
In Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636 [20 L.Ed.2d 1313, 88 S.Ct. 2103], a police officer had actually seen the motion picture involved. His affidavit recited that he had determined it to be obscene on the basis of his viewing of it and of the billboard in front of the theatre. A warrant was issued and the film seized. Without deciding that it would have been necessary for the magistrate to see the picture before issuing the warrant, the court held that it should not have issued on the conclusion ary allegation in the affidavit.
Even Lee Art Theatre had more to back up the warrant than does this case. At least the police officer had seen the particular picture involved. Here nobody had seen anything.
On the basis of the authorities, I would feel compelled to reverse if I could find another judge to agree with me.
Appellant’s petition for a hearing by the Supreme Court was denied November 24, 1971. Peters, I., was of the opinion that the petition should be granted.
I assume that the magistrate was entitled to consider defendant’s statement to Ray, although Monnett did not swear to it. United States v. Ventresca, 380 U.S. 102, at page 111 [13 L.Ed.2d 684, at page 690, 85 S.Ct. 741]. “Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis'for a warrant applied for by one of their number.”
The fact that the magistrate in the instant case had a hair trigger pen when it came to signing search warrants, is amply proved by the fact that he permitted the search for, and seizure of tijuana bibles and, both with respect to such items and films, went along with Officer Shaidell’s lurid description of what they would contain. I have a substantial reservation that the over-breadth of the warrant is saved by Aday v. Superior Court, 55 Cal.2d 789 [13 Cal.Rptr. 415, 362 P.2d 47], There the court held that the invalid portions of the search warrant in question could be severed from the valid ones. It did, however, add: “In so holding we do not mean to suggest that invalid portions of a warrant will be treated as severable under all circumstances. We recognize the danger that warrants might be obtained which are essentially general in character but as to minor items meet the requirement of particularity, and that wholesale seizures might be made under them, in the expectation that the seizure would in any event be upheld as to the property specified. Such an abuse of the warrant procedure, of course, could not be tolerated.” (Aday v. Superior Court, supra, 55 Cal.2d 789 at p. 797.)
Not too many years ago such films were shown at clandestine stag parties. Today people complain with some justification that it is difficult to find a motion picture which does not, more or less explicitly, depict a sexual act.
In People v. Chapman, 17 Cal.App.3d 865 [95 Cal.Rptr. 242], the warrant directed the seizure of 30 specifically identified magazines and paperbacks. Actually seized were 47 magazines and 31 paperbacks, some of which were, naturally, not named in the warrant. The municipal court ordered that only the material not listed on the warrant be returned to the defendant, although it apparently found it to be obscene. The appellate department suppressed the lot. On certification the Court of Appeal vacated the order of the municipal court with respect to the unlisted material and upheld the seizure of the listed magazines and books. As I read the case the vacation of the order with respect to the unlisted material was based on the finding that it was obscene and, hence, non-returnable contraband (Aday v. Superior Court, 55 Cal.2d 789, 800 [13 Cal.Rptr. 415, 362 P.2d 47]) and did not amount to a ruling that it would be admissible in evidence.
A review of conflicting decisions concerning the necessity of a pre-seizure adversary hearing will be found in Hirsch and Ryan, I Know It When I Seize It: Selected Problems in Obscenity, 4 Loyola L.Rev. 9, 23-65.
As noted, the search netted 91 reels of film and, according to the list of exhibits which is part of our record, 162 “booklets.”