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Court of Appeal, Second District, Division 2, California.

The PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Harold FREEMAN and Don Gilbert Horne, Real Parties in Interest.

Civ. 44318.

Decided: July 30, 1974

Joseph P. Busch, Dist. Atty., Harry B. Sondheim, Head, App. Div., Los Angeles, Sterling S. Suga, Deputy Dist. Atty., for petitioner. No appearance for respondent court. Fleishman, McDaniel, Brown & Weston by David M. Brown, Hollywood, for real parties in interest.

Defendants, charged in an information with conspiracy to violate Penal Code section 311.2,1 moved under Penal Code section 1538.5 to suppress three exhibits which were seized without a warrant by deputy sheriffs. The three exhibits were an album of still photographs, a 16 mm. film, 2,000 feet in length, and a group of 16 mm. films offered collectively as one exhibit.

In a hearing de novo in the superior court that court issued an order suppressing the use as evidence of the three exhibits. The hearing in the superior court was based on a submission of the transcript of testimony taken at the preliminary hearing, at which the magistrate after viewing the exhibits found them to be obscene. The defendants make no contention that the exhibits are not obscene.

The superior court ordered the evidence suppressed under the authority of Flack v. Municipal Court, 66 Cal.2d 981, 59 Cal.Rptr. 872, 429 P.2d 192. We have concluded that under the circumstances in this case Flack is inapposite and instead the situation is controlled by the principles enunciated in People v. Golden, 20 Cal.App.3d 211, 97 Cal.Rptr. 476, and People v. Burnstad, 32 Cal.App.3d 560, 108 Cal.Rptr. 247.


In January of 1972, Ronald Young, a deputy sheriff for the County of Los Angeles, assigned to vice enforcement, received information that pornographic films could be purchased by calling a specific telephone number. The deputy called the number and the phone was answered by a female voice stating ‘Hollywood House of Films.’ When the deputy indicated his interest in purchasing films, defendant Freeman came to the phone. The deputy then stated to Freeman that he was interested in buying hard-core pornographic films to which Freeman responded, ‘Sure. When can you come and see 'em?’ The deputy indicated he could view the films ‘Sometime next week.’

Approximately five days later, Deputy y Young called the telephone number again and it was answered by defendant Freeman. Arrangements were made for the deputy to come to the Hoolywood House of Films that afternoon. Freeman directed the deputy to an office suite located at the corner of Fountain and Highland Avenue in Hollywood. After arrival at the office suite, which incidentally was behind a locked door, the deputy was admitted and met defendant Freeman face to face. Also present was defendant Horne. In a conversation with the deputy, Freeman stated, ‘I have some good action films, sucking and fucking; the films sell for anywheres between $550 to $2000 for a one-hour feature length color sound film.’

While defendant Horne was dispatched to obtain some films for viewing, Freeman handed the deputy sheriff a photograph album. This album contained color photographs depicting sexual activities including cunilingus, fellatio, coitus, Lesbianism and homosexual activities.

The deputy told Freeman that he was going to use the films for opening up a business to deal in pornographic films, movies and magazines. Defendant Freeman, during the course of this conversation, described in some detail his operations as to how he produced the films and where and how he obtained his performers.

Shortly thereafter, Horne entered the office with a 16 mm., 2,000 foot reel. Other deputy sheriffs located outside the building had observed Horne obtain this reel along with others from a trunk of an automobile parked nearby. When Horne re-entered the office he told defendant Freeman that he thought there were some ‘cops hanging around downstairs,’ whereupon Freeman instructed Horne to take the stuff back. Horne then left, carrying all of the films except the one reel which he left in the office. The deputy sheriffs on the outside of the building observed Horne place there films in the trunk of yet another automobile parked in the area.

In the meantime, Freeman proceeded to exhibit the film for Deputy Young. The film contained acts of cunilingus, fellatio and coitus. Upon completion of the viewing of the film the deputy placed both defendants under arrest and took the film and the aforementioned photo album into custody as well as the films which defendant Horne had been seen to place in the trunk of the parked automobile.


Admittedly the arrest of both defendants was a valid one. The defendants' statements and conduct provided probable cause to believe they were engaged in a conspiracy to distribute obscene material. In the ordinary case the officers would have been entitled to search the person and immediate presence of the defendant and to seize any evidence or the fruits or instrumentalities of the crime which were in control of defendants or in plain view. (Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L. Ed.2d 685.) This would include the films which Horne was seen to place in the vehicle. (Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419; People v. Gurley, 23 Cal.App.3d 536, 100 Cal.Rptr. 407; People v. Farley, 20 Cal.App.3d 1032, 98 Cal.Rptr. 89; People v. Thompson, 25 Cal.App.3d 132, 101 Cal.Rptr.683.)

However, Flack v. Municipal Court, supra, as well as decisions of the United States Supreme Court (Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; A Quantity of Books v. Kansas, 378, U.S. 205, 84 S.Ct. 1723, 12 L. Ed.2d 809) hold that while obscene material is contraband and not protected by the First Amendment of the United States Constitution, it is not easily recognizable as such in the same manner as narcotics, gambling paraphernalia or other types of contraband, hence the rules generally applicable to the seizure of evidence or contraband do not apply.

Before matters which presumptively enjoy First Amendment protection are subject to seizure the law requires a deter mination as to their probable obscene character. The issue to be determined is whether there is probable cause to believe that the material is obscene, which initial determination need not include application of contemporary community standards (People v. Luros, 4 Cal.3d 84, 92 Cal.Rptr. 833, 480 P.2d 633). This leaves for determination essentially the factors of the matter's prurient appeal and its redeeming social value if any.

Since the question of prurient appeal is not generally a difficult one, ‘The one element of the definition of obscenity which is critical in setting apart what otherwise might be considered as such is the presence of some redeeming social value. It is the difficulty in making this determination that underlies the rationale of Marcus, Kansas and Flack.’ (People v. Burnstad, supra, 32 Cal.App.3d at pp. 565–566, 108 Cal.Rptr. at p. 251.) Thus in effecting a seizure of material which appears to be within the ambit of the First Amendment to the United States Constitution, an officer is not at liberty to exercise his own judgment as to whether the matter does or does not have redeeming social importance.

While the cases of Marcus, Kansas and Flack speak of a prior judicial determination of obscenity, we held in Burnstad that when the defendant himself makes a determination that the material is obscene and from his own mouth pronounces it as such, he marks the material as contraband and obviates the need for a judicial determination prior to its being seized.

In Burnstad, at p. 566, 108 Cal.Rptr. at p. 251, we relied heavily on Ginzburg v. United States, 383 U.S. 463, at pp. 474–475, 86 S.Ct. 942, 16 L.Ed.2d 31, where it was stated: “. . . the fact that each of [the films] was created or exploited entirely on the basis of its appeal to prurient interests strengthens the conclusion [the films] . . . were . . . illicit merchandise, not . . . constitutionally protected matter.” Further, in Ginzburg, at p. 470, 86 S.Ct. at p. 947, ‘Where the purveyor's sole emphasis is on the sexually provocative aspects of his [films], that fact may be decisive in the determination of obscenity.’

“[A] court [and we think a policeman in making an initial seizure] could accept his [the purveyor's] evaluation at its face value.' (Memoirs v. Massachusetts, 383 U.S. 413, at 420, 86 S.Ct. 975, at p. 978, 16 L.Ed.2d 1; see also Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56.)' (Burnstad, 32 Cal.App.2d at 566, 108 Cal.Rptr. at 251.)

The right guaranteed under the Fourth Amendment to be secure against unreasonable search and seizure may be waived and a search without a warrant may be reasonably conducted where the defendant consents to such search. It follows that a defendant who might otherwise be entitled, prior to seizure, to a judicial determination of the obscene character of his written or printed material may obviate or waive the need for such judicial determination by a concession on his part that the matter is in fact obscene.

In People v. Golden, supra, 20 Cal.App.3d 211, 97 Cal.Rptr. 476, Division V of this court held that a search warrant could issue to seize films without a prior adversary hearing where the obscenity factor was established by the defendant's own statements. in Golden, the officers who obtained the warrant had not themselves actually viewed the films but had overheard the defendant describe the films to a third person in almost the same language that the defendant Freeman used here in describing his product.

Thus the officers based on the defendants' own statements here had probable cause to believe that all of the materials seized were obscene and thus contraband subject to seizure. (See Skelton v. Superior Court, 1 Cal.3d 144, at 157, 81 Cal.Rptr. 613, 460 P.2d 485.)

Defendant Freeman's sales pitch, and the defendants' concern over the possible presence of the police coupled with the sampling of the product which was provided to the deputy left little doubt that the defend ants were engaged in commercial exploitation of hardcore pornography. They may not new be heard to contend that a prior judicial determination of the accuracy of the description of their own product was necessary before the films could be seized. A defendant who panders and promotes material as hardcore pornography runs the risk that his claims will be accepted as true.

The manner in which the defendants were operating would make it almost impossible for there to be any judicial determination of the obscene character of the films without first seizing them when the opportunity was presented. This is not the case where a copy of a book may be purchased at a book store and presented to a magistrate for reading nor is it the case of a movie being publicly exhibited even to a magistrate or policeman who paid the price of admission. (See United States v. Cangiano, 2 Cir., 491 F.2d 906.)

Here the defendants were surreptitiously transporting the films in the trunk of an automobile and exhibited them only to persons who could establish to defendants' satisfaction that they themselves were violating the law. Under these circumstances even if the officer had, without arresting defendants, repaired to a magistrate to describe what he had seen and heard, it is highly unlikely that the specific films could have later been found again. This would qualify as the exigent situation which Flack2 envisioned as being exempt from the requirements of that case. Having validly arrested the defendants on adequate probable cause, the ensuing preliminary hearing provided as prompt a determination of the character of the material as any other possible alternative.

Let a peremptory writ of mandate issue directing the superior court to set aside its order suppressing the evidence and enter a new and different order denying a motion to suppress.


1.  Penal Code section 311.2 provides in part:‘(a) Every person who knowingly sends or causes to be sent, or brings or causes to be brought, into this state for sale or distribution, or in this state possesses, prepares, publishes, or prints, with intent to distribute or to exhibit to others, or who offers to distribute, distributes, or exhibits to others, any obscene matter is guilty of a misdemeanor.’

2.  Flack v. Municipal Court, 66 Cal.2d 981, footnote 10, at page 991, 59 Cal.Rptr. 872, at page 878, 429 P.2d 192, at page 198, reads:‘We conceive of a legitimate emergency arising in arrest situations involving a high probability that evidence may be lost, destroyed, or spirited away. The one-night surreptitious screening of a film at a locked-door ‘stag’ party may under appropriate circumstances justify seizure without a warrant. It is clear that in the instant case, involving a showing at a public theater for two weeks, no emergency existed.'

COMPTON, Associate Justice.

FLEMING, Acting P. J., and BEACH, J., concur.