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Court of Appeal, Fourth District, Division 1, California.

Jack FLACK and Leonard Earl Stephenson, Petitioners and Appellants, v. MUNICIPAL COURT OF ANAHEIM-FULLERTON JUDICIAL DISTRICT, Respondent.

Civ. 8185.

Decided: January 20, 1967

Stanley Fleishman, Hollywood, for petitioners and appellants. Joseph B. Geisler, City Atty., of Anaheim, and Lloyd J. Goldwater, Deputy City Atty., for respondent.


On April 27, 1965, the film ‘Sexus' was exhibited at a theater in Anaheim, California. In the audience at the time were two officers, members of the Anaheim Police Department. After viewing the film in its entirety, they arrested Jack Flack, the owner of the theater, and Leonard Stephenson, an employee, (hereinafter referred to as appellants) and seized the film. The acts of arrest and seizure of evidence were effected without first having secured a warrant.

A criminal complaint later filed charged them, in count one, with violation of Penal violation of Penal Code, section 650 1/2. Appellants demurred to both counts. The demurrer was overruled as to count one, sustained without leave to amend as to count two. Motions were also made to suppress evidence and for the return of property (the film) which appellants allege was illegally seized at the time of their arrest. The Municipal Court denied the motions. Thereafter, appellants filed a verified petition for a writ of mandate. The prayer asked that the Municipal Court be ordered to direct return of the film ‘Sexus' to the appellants. An alternative writ was issued. After a hearing, it was discharged and issuance of the peremptory writ denied.


I. Is mandamus the proper remedy?

II. Did seizure of the film, as here done, violate the free speech provisions and the search and seizure provisions of the Federal and State Constitutions?

III. Is the burden upon the censor to justify the suppression of the material seized?

Point I. Appellants, in support of their contention that mandamus is their proper remedy, cite People v. Gershenhorn, 225 Cal.App.2d 122, 37 Cal.Rptr. 176 and Gershenhorn v. Superior Court, 227 Cal.App.2d 361, 38 Cal.Rptr. 576. They contend that this procedure is particularly appropriate when an issue of free speech or free press is involved, citing Aday v. Superior Court, 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47 and Aday v. Municipal Court, 210 Cal.App.2d 229, 26 Cal.Rptr. 576.

Respondent, on the other hand, contends that these authorities can either be distinguished on the facts or are not in point. It argues no showing has been made that appellants lack an appropriate, ordinary remedy, which is in itself quick and adequate and thus they have failed to justify use of the extraordinary writ of mandamus. The suggested remedy is ‘a trial on the merits of the case.’

In the Gershenhorn and Aday cases, cited by appellants, both search under a warrant and seizure were involved. The instant case involves only seizure. In this respect it differs from the cited cases. The Gershenhorn case concerned business records and personal property and did not involve ‘contraband’ as that term is used in cases such as this. As here, the Aday case dealt with obscene material.

We are convinced that where there is a seizure, the question of involvement of a search warrant has no essential bearing upon the availability or nonavailability of a remedy by which return of the seized material should be sought.

Penal Code, section 1540, provides for the return of property improperly seized under a warrant. In People v. Gershenhorn, supra, 225 Cal.App.2d 122, 37 Cal.Rptr. 176, the court held that in such cases one may ‘either as an alternative to, or in conjunction with, a motion to suppress, move for its return * * *’ The opinion continues: ‘If the property was illegally seized without a warrant, the courts have allowed a similar motion.’ In Gershenhorn v. Superior Court, 227 Cal.App.2d 361, 38 Cal.Rptr. 576, the court reasons as follows:

‘To say that a citizen has a prompt and simple remedy for the return of his property when a warrant was involved, but no such remedy where a warrant is neither sought nor used, is to reverse the constitutional order of importance and would induce law enforcement officers to dispense with, rather than to use, the orderly procedure which the Constitution clearly prescribes.’ (p. 365, 38 Cal.Rptr. p. 578)

The case goes on to hold that even though property is seized without a warrant it is held by the levying officer on behalf of the court, under the immediate control of the court, and is subject to an order made in a summary proceeding. Such an order not being reviewable on appeal from a judgment of conviction, since it is a separate procedure from the criminal, gives rise to availability of review through a writ of mandate. The inadequacies of the remedy suggested here by respondent are discussed in that opinion. The reasoning in the Gershenhorn, case, where contraband was not involved, would apply with bolstered logic in a case such as the one before us where the subject matter is seized as contraband and is of such nature that it would be contraband if found to be obscene as alleged by the seizing officers. We are not convinced that a consideration of the constitutional guarantees of free speech or free press would reflect a different light on the reasoning in the Gershenhorn case. Similar relief was granted through mandamus in Aday v. Superior Court, supra, 55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47; Aday v. Municipal Court, supra, 210 Cal.App.2d 229, 26 Cal.Rptr. 576; and Dunn v. Municipal Court, 220 Cal.App.2d 858, 34 Cal.Rptr. 251. In those cases there is no indication that resort to mandamus as a remedy was questioned. Search warrants were involved but, as indicated in Gershenhorn v. Superior Court, supra, 227 Cal.App.2d 361, 38 Cal.Rptr. 576, this circumstance dictated no invalidation of mandamus as a remedy no invalidation of mandamus as a remedy where seizure was made without a warrant.

Points II and III. It is settled law that an officer has the right and duty to arrest without a warrant for a misdemeanor committed in his presence; and to seize property by means of which the crime was committed. (Trowbridge v. Superior Court, 144 Cal.App.2d 13, 300 P.2d 222; In re Dixon, 41 Cal.2d 756, 761–762, 264 P.2d 513.) Here, the theater where the arrest and seizure were made was open to public patronage. The arresting officers had the right to enter along with other members of the public. The film in question, which was shown on the screen to the patrons assembled, was deemed by the viewing officers to be contraband, whereupon they arrested a appellants and seized the film as an incident to the arrest. No citation of authority seems necessary for the proposition that probable cause need not be previously determined in each instance by a judicial officer before a police officer can make a lawful arrest accompanied by seizure for that which would appear to ‘the reasonable man’ to be a crime involving contraband. Police officers cannot be relegated to a classification wherein their judgment would not meet the test enunciated in Roth v. United States, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, viz. ‘[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.’ [Emphasis added.]

Appellants contend the attempt to justify seizure of the film on the ground that it was an incident to a legal arrest must fall if constitutional guarantees such as those of free speech and free press are involved. They say the question is not the legality of appellants' arrest but the unconstitutionality of seizing the film without a prior judicial determination of probable cause that the film was obscene and therefore subject to seizure under a lawfully issued warrant. (Citing Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809, and Marcus v. Search Warrants of Property, etc., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127.) They contend that ‘Where as here police officers seize a motion picture film or other expression, because of, ‘the ideas which they contain,’ the most scrupulous procedural exactitude is required.' However, in Gouled v. United States (1921), 255 U.S. 298, 309, 41 S.Ct. 261, 265, 65 L.Ed. 647, the court said:

‘There is no special sanctity in papers, as distinguished from other forms of property, to render them immune from search and seizure, if only they fall within the scope of the principles of the cases in which other property may be seized, and if they be adequately described in the affidavit and warrant.’

It is not apparent where adversary proceedings are readily available how appellants' constitutional rights suffered substantially more by direct seizure after the officers had viewed the film than would have been the case had they first viewed the film and then projected by description the mental image gained thereby upon the mind of a judicial officer, who had not viewed the film, in support of an application for a search warrant. Conceding that the duty of resolving a question of obscenity is ultimately a judicial function, this does not and should not neutralize the right to make the type of initial decisions which legally are and must be made by police officers as a part of their duty in the making of many arrests. Non-availability of an expeditious and adequate check on such decisions would legitimize appellants' contention, but existence of such a remedy renders appellants' argument on the point untenable. Since the profit motive underlies the possession and showing of motion picture film in a public theater, this is entitled to no more protection than any other profit venture merely because police power protection of the public might temporarily interfere with questionable legal dissemination of ‘ideas which they contain.’

In Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649, which involved motion picture censorship, the court reaffirmed the principle that only a judicial decision in an adversary proceeding insures the necessary sensitivity to freedom of expression. But this decision does not preclude prior seizure, for the court also went on to say that any restraint imposed in advance of a final judicial determination on the merits must be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution, and that the procedure must insure a prompt, final judicial decision to minimize the deterrent effect of an interim and possibly erroneous denial of the right to exhibit. Surely liberty in the sense of freedom from physical restraint is as dear to the individual and is as adequately protected by constitutional guarantees as is freedom of expression. Yet it is unquestioned that a police officer without a warrant may, by making a personal evaluation of probable cause, temporarily deprive an individual of his physical freedom. Indeed, this was done in the instant case and yet appellants complain not that they were unconstitutionally deprived for a time of their liberty but only that they were unconstitutionally deprived of freedom of expression. An expeditious remedy was available to them in both cases.

In United States v. Peisner (4 Cir.1962), 311 F.2d 94, defendants were convicted for transporting in interstate commerce obscene, lewd and lascivious material contained in paper-back books. The search and founded upon information received from informers and during a period of prior surveillance of defendants' activities by officers. The arresting officers making the search and seizure had not read any of the material seized at the time of making the arrest. The court said, at page 99:

‘* * * no traffic violation was cited as the reason for the arrests, and it appears that the search, seizure, and arrests were made, at least in substantial part, because of the information furnished by the FBI.’

The judgment was reversed primarily because probable cause had not been properly established for making the arrest and for the search and seizure. However, at page 105 of the opinion, the court states the rule as follows:

‘Though safeguards are necessary to protect the products of a free press in accord with the dictates of the First Amendment, we are no prepared to say that there must have been a prior determination of obscenity by a judicial officer to constitute probable cause for a search for and seizure of particular publications thought to be obscene. However, as a minimal requirement, we deem it essential that some qualified individual, aware of the proper test of obscenity as formulated and announced in Roth v. United States, supra, should have made a determination prior to search and seizure that a particular publication meets that test. In order to make such a determination, one must have read the whole or, at least, a very substantial portion of the suspected publication, not merely a few sentences, paragraphs or pages selected at random. If law enforcement officers have reasonable cause to believe that certain specific publications are obscene and are located in the place to be searched, a factual base offered to justify a search without a warrant must be sufficiently strong to support the issuance of a search warrant.’

Respondent points out that obscenity is not protected by the Constitution. In Aday v. Superior Court, supra, 55 Cal.2d 789, 799, 13 Cal.Rptr. 415, 421, 362 P.2d 47, 53, the court states:

‘Obscenity is not protected by the Constitution (Roth v. United States, 354 U.S. 476, 481, 486, 77 S.Ct. 1304, 1 L.Ed.2d 1498), and, although previous restraint upon publication is in general prohibited, some exceptions have been recognized, among which is that ‘the primary requirements of decency may be enforced against obscene publications.’ [Citing cases.] * * * The seizure of all copies of an allegedly obscene book is not invalid if made on probable cause and if the owner of the book has adequate remedies by which to litigate the issue of obscenity. Where, as here, the seizure occurs under a warrant, an ex parte determination of the issue of obscenity, so far as probable cause is concerned, has taken place before issuance of the warrant, and immediately after the seizure a determination of the issue to that extent can be obtained in adversary proceedings by controverting the warrant under sections 1539 and 1540 of the Penal Code. In the event the owner is unsuccessful in that proceeding, a final determination as to obscenity will be had in the criminal action which will ordinarily follow within a reasonable time, or other remedies such as mandamus will be available to secure return of the property. [Citing cases.] These various remedies satisfy the requirements of due process, and the taking of all copies of the named books did not violate freedom of speech and press.' [Emphasis added.]

As a substantial violation of a constitutional right, we can see no essential difference between seizing unnamed contraband under a valid warrant and seizing that which might, to a reasonable person, be deemed contraband after lawful entry without a warrant where a search is not involved. In Aday v. Superior Court, supra, 55 Cal.2d 789, 800, 13 Cal.Rptr. 415, 422, 362 P.2d 47, 54, the court further states:

‘It should be noted, however, that if any of the property seized other than the named books was contraband, petitioners are not entitled to its return. [Citing cases.] Any property in possession of petitioners in violation of section 311 of the Penal Code was, of course, contraband.’ [Emphasis added.]

Penal Code, section 311, dealing with obscenity, has been held to be constitutional. (People v. Aday, 226 Cal.App.2d 520, 530–531, 38 Cal.Rptr. 199.) The decisions of the United States Supreme Court cited by petitioners fail to support their contention that a seizure, such as here involved, is an unconstitutional prior restraint on freedom of expression. Those cases deal with search warrants which were condemned for breadth and generality or with seizures under state censorship statutes as distinguished from seizure incident to an arrest for an alleged violation of a criminal obscenity statute occurring in the officers' presence. Where property is of such nature as to involve a question of free speech or free press, the owner has a constitutional right to prompt judicial determination on the issue of obscenity after a factual hearing. (Aday v. Municipal Court, supra, 210 Cal.App.2d 229, 26 Cal.Rptr. 576; People v. Aday, supra, 226 Cal.App.2d 520, 38 Cal.Rptr. 199; Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649.) The existence of the right is sufficient as a shield against violation of constitutional guarantees. It is not incumbent upon the people to take the initiative in activating the remedy.

In Aday v. Superior Court, supra, 55 Cal.2d 789, 791, 13 Cal.Rptr. 415, 362 P.2d 47, it is held that determination of the issue of obscenity ‘can be obtained in adversary proceedings by controverting the warrant under sections 1539 and 1540 of the Penal Code.’ A similar result can be achieved by controverting a seizure without a warrant.

The record here discloses no move on the part of appellants for a hearing on the issue of obscenity. A hearing was neither requested nor denied by the court. Appellants elected rather to proceed upon the theory of an unconstitutional prior restraint on the freedom of expression. We find no error in denial of the writ.

The judgment is affirmed.



FINLEY, Justice pro tem.* FN* Assigned by the Chairman of the Judicial Council.

BROWN, P. J., and COUGHLIN, J., concur.

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