NORTHROP, District Judge.

Plaintiff, the proprietor of an "adult book store" has filed a complaint against the Commissioner of the Baltimore City Police Department and the State's Attorney for Baltimore City, seeking: (1) preliminary and permanent injunctions (a) enjoining defendants from making any arrests or seizures of publications or other material in plaintiff's possession without a prior adversary proceeding on the issue of obscenity, (b) enjoining them from prosecuting certain indictments pending in the Criminal Court of Baltimore against plaintiff and his employees charging violations of the Maryland obscenity laws, based upon material purchased from his store or seized there, and (c) directing the return of the material seized; (2) a declaratory judgment that certain Maryland statutes dealing with obscenity and search and seizure are unconstitutional on their face and as applied; (3) $100,000 damages against defendants jointly and severally; and (4) other and further relief. A three-judge court has been convened, and defendants have filed a motion to abstain, which has been heard by the three judges. At the hearing plaintiff dismissed his claim for damages and defendants offered to take certain action and to refrain from other action, set out and discussed below. The facts appear from the allegations of the complaint, many exhibits and undisputed statements by counsel at the hearing.

The statutes under attack, art. 27, secs. 417, 418 and 551, Md. Code Ann. (1967 Repl.Vol.), are set out in note ,

along with Maryland Rule 707, which is also challenged. Article 27, sec. 418A, referred to in the argument but not attacked, is set out in note .

Plaintiff operates an "adult book store" in Baltimore, dispensing "adult-type" publications and materials. He alleges, and we must assume for the purposes of this motion, that no sales or offerings are made to minors under 18 of any "adult-type materials," and that minors "are not permitted to browse or view the materials on display for sale." Plaintiff does not allege that minors are not permitted in the store, or that minors are not sold publications other than "adult-type materials."

On May 16, 1968, defendants obtained from a judge of the Supreme Bench of Baltimore a search warrant authorizing the search and seizure from plaintiff's premises of "Obscene Publications, that is, Magazines entitled Modern Girls, Number 7." A copy of the magazine had been purchased by a detective at plaintiff's store. The judge examined a copy of the magazine, but held no adversary proceeding before the warrant was issued. Nothing was taken during the search, but shortly thereafter the grand jury returned (1) an indictment against Lucille Adler for selling that magazine, which was charged to be obscene, and (2) an indictment against her and plaintiff herein for possessing with intent to distribute certain obscene material, to wit: that magazine.

On November 20, 1968, defendants obtained from a judge of the Supreme Bench, without prior adversary hearing, but after the judge had examined a copy of "Coquette No. 4," which had been purchased by defendants at plaintiff's store, a warrant authorizing the search and seizure from plaintiff's premises of "One magazine entitled COQUETTE No. 4, depicting nude and semi-nude females posing with genitalia exposed; photographs, magazines, film other material depicting nude semi-nude male and female persons and nude and semi-nude female persons embracing and engaging in sexual activities." Pursuant to that warrant, defendants seized a total of eleven copies of ten different magazines or books. No copy of "Coquette No. 4" was seized. On November 22, 1968, the grand jury indicted (1) Michael J. Owens, an employee of plaintiff, for selling "Coquette No. 4" to the officer, and (2) Owens and plaintiff herein for possessing with intent to distribute certain obscene matter, to wit: Coquette No. 4 and the ten magazines which had been seized.

Purchases from and seizures at the premises of other dealers were made on both occasions, and some 39 indictments had been filed before November 29, 1968, including the four referred to in the preceding paragraphs.

On November 29, 1968, an action entitled Kramer, et al. v. Pomerleau, et al., Civil No. 20151, in which plaintiff herein was one of the plaintiffs, was filed in this court, seeking: (1), (2) temporary and permanent injunctions against further seizures without prior adversary hearings, and return of the property theretofore seized; (3), (4) temporary and permanent injunctions against the prosecution of any pending or future indictments based on or resulting from such seizures; and (5) damages. At a conference with counsel in that case, it appeared that motions challenging the legality of the warrants and seizures had been filed in the cases then pending in the Criminal Court based on the May 1968 and November 1968 indictments. It was suggested and counsel for all parties in the Kramer case consented that this court should refrain from further action in that case until the motions filed in the Criminal Court cases were decided by the Criminal Court.

Those motions were heard promptly, and on January 3, 1969, Judge Harris filed an opinion and order in those cases holding that:

1. An adversary hearing, prior to the issuance of a search and seizure warrant, is not mandatory when hard-core pornography is the property described in the application for the warrant.

2. The magazines and photographs which were shown to and examined by the judges who issued the warrants in these cases constitute hard-core pornography.

3. The defendants who are licensees of the stores, which were searched under the authority of the warrants and/or the owners of the seized property, are subject to prosecution by the State under the applicable Maryland statutes.

Judge Harris overruled all motions filed in the 39 indictments "to the extent of the above findings."

After that ruling no motions for speedy trial were filed in any of the cases in the Criminal Court and the State did not set them for trial. Nor was any effort made by any of the plaintiffs in the Kramer case in this court to bring that case on for trial or other decision.

On September 22, 1969, defendants obtained from a judge of the Supreme Bench without a prior adversary hearing, but after the judge had examined two magazines, "Les Two" and "Doubles," Vol. 1, No. 1, which an officer had purchased at plaintiff's store, a warrant authorizing a search and seizure from plaintiff's premises of "Books, photographs, film, magazines, and other printed matter containing pictures portraying males and/or females who are nude and whose genitals are prominently and suggestively exposed and whose pose suggest that they are engaged in some form of bi- or homo-sexual activity, including masturbation, fellatio, connilingus, anal and/or vaginal intercourse." Pursuant to that warrant defendants seized on the same day 197 copies of 67 different magazines, 142 copies of a paper or magazine entitled "Kiss" and 241 copies of a paper or magazine entitled "Screw." Shortly thereafter, two indictments were filed, one charging plaintiff herein with unlawfully distributing certain specifically described obscene material.

On October 20, 1969, without a prior adversary hearing, but upon affidavit and exhibition of Volumes 25 and 26 of a newspaper called "Screw" purchased by a detective of the Baltimore City Police Department, a search and seizure warrant authorizing the seizure from plaintiff's premises of property "pertaining to obscene publications" was issued. One hundred eight copies of a newspaper entitled "Screw," 5 reels of 8 mm color film, 21 magazines and 2 books were seized, and shortly thereafter plaintiff herein and another were again indicted for possession with intent to distribute certain specifically described obscene material.

Finally, on December 2, 1969, following similar proceedings as in the previous paragraph, 526 copies of 144 items were seized. No indictments followed that seizure.

No proceedings to suppress or to secure the return of any material seized in September, October, and December, 1969, have been filed in any state court, either in the criminal prosecutions filed in September and October, or otherwise.

Some of the indictments resulted from purchases before the searches and seizures; no motions to suppress would lie with respect to those indictments, although other points raised herein could be raised in defense of the prosecutions.

The complaint herein was filed on December 8, 1969. It alleges most of the facts set out above, that plaintiff has been forced to curtail his business from time to time, that defendants' actions have and perpetuate a "chilling effect" on the exercise of plaintiff's first amendment rights as well as the right of the citizens of Maryland and the other 49 states who may visit the State of Maryland who wish to exercise their first amendment right to buy, receive, and view non-obscene publications and films.

The complaint then sets out at length the alleged "basis in law for relief" contending: that sec. 417 and sec. 418 of article 26 of the Maryland Code are facially unconstitutional for 10 different reasons; in the alternative, that they have been unconstitutionally applied for 6 reasons; that sec. 551 is facially unconstitutional for 8 reasons and has been unconstitutionally applied for 11 reasons; and that "there was no constitutionally relevant evidence to support probable cause presented * * * to the Grand Jury in securing the criminal indictments herein, nor was there any reasonable or probable cause to believe that any publications charged under these indictments are obscene in the constitutional sense," for 7 reasons. Plaintiff further alleges that there was no intensive advertising or pandering; and that the publications do not "animate" sexual activity and are not "hard core" pornography, as that term has been defined by Mr. Justice Stewart in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966), "and about which several justices apply a not `dissimilar standard' in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515;" and that the "publications which were purchased and on which the ex parte warrants were issued, cannot be presumed to be utterly without social value." Plaintiff claims that his rights under the first, fourth, fifth, sixth, and fourteenth amendments have been violated, and sets out repetitively the relief requested, which was outlined at the beginning of this opinion.

At the hearing on the motion to abstain, defendants renewed and amplified the alternative suggestions which they had made at the preliminary conference in this case. They offer: (1) to set for trial immediately all 5 of the criminal prosecutions against plaintiff; (2) to nol pros any of those cases based upon material seized from plaintiff under general warrants and to return the material seized from plaintiffs under general warrants; (3) if convictions are obtained in any of the cases against plaintiff, to cause any appeals therein to be placed on an advanced appellate calendar; (4) until the criminal cases against Adler are concluded, to refrain from further raids based on general warrants or ex parte warrants issued under sec. 551 of article 27, reserving the right (a) to arrest or prosecute or both based upon a purchase of an individual item or items, and (b) to obtain warrants under the procedures set out in sec. 418A of article 27 (see note 3); and (5) to return all but one or two copies of each magazine or other item seized from plaintiff under specific warrants heretofore issued under sec. 551, and, if any items were seized incident to an arrest, to keep only those which were purchased.

Recently there has been a flood of decisions attempting to cope with obscenity. These cases vary as to facts and statutes applied and construed. Another analysis of this rapidly expanding and confusing field of law could not supply any new delicacy to this smorgasbord. Particularly is this so when one observes that members of the Supreme Court have written 55 separate opinions in 13 cases on the subject of obscenity in the 10 years prior to 1968 and have not been able to agree on what it is or how to deal with it.

Continually suits are filed by dealers and exhibitors carrying the torch of the first amendment, not only, they say, for their rights of freedom of expression but also the right of the "rich and poor Stanleys" to indulge in a freedom of choice. See Karalexis v. Byrne, 306 F. Supp. 1363, 1367 (D.Mass.), stay granted, 396 U.S. 976, 90 S.Ct. 469, 24 L.Ed.2d 447, 486 (1969), prob. juris. noted, 397 U.S. 985, 90 S.Ct. 1123, 25 L.Ed.2d 394 (1970). We cannot help but observe that this latter helping hand is not entirely altruistic.

Be that as it may, the demands of this type of litigation on the federal courts seriously delay the resolution of important matters pending in all jurisdictions.

This is not to say that the problem of obscenity is minimal, for it is a serious one. It is best expressed in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), where the problem is said to be "to reconcile the right of the Nation and of the States to maintain a decent society and, on the other hand, the right of individuals to express themselves freely in accordance with the guarantees of the First and Fourteenth Amendments."

Defendants have urged that this court abstain from "granting the relief sought in the complaint filed herein, or otherwise passing upon the issues raised in the complaint, pending resolution of those issues by the Criminal Courts of the City of Baltimore, State of Maryland." Whatever force this argument may have in the normal context, see Note, 80 Harv.L.Rev. 604 (1967), the Supreme Court has indicated that special attention must be given where, as here, "the attack upon the statute is for repugnancy to the First Amendment." Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967). The Court's language indicated that it felt abstention improper in such a circumstance, where "to force the plaintiff who has commenced a federal action to suffer the delay of state court proceedings might itself effect the impermissible chilling of the very constitutional right he seeks to protect." Id. at 252, 88 S.Ct. at 397. Basically, this case involves an attack by the plaintiff on two facets of state law as it pertains to him. First, he attacks the procedure whereby certain materials were seized and arrests made without a prior adversary hearing on the issue of obscenity. Second, the plaintiff attacks the Maryland obscenity statutes, art. 27, Md. Code Ann., secs. 417 and 418 (1967 Repl. Vol.). He further requests an injunction against the continuation of state prosecution. For reasons which will appear below, we agree with a portion of his first contention, and are granting relief on that question.

From the facts of this case, it appears that the prosecutions in question are based on evidence obtained in one of two ways. Some of the evidence was purchased by defendant at the plaintiff's store. The bulk of the material, however, was obtained as the result of seizures made pursuant to warrants which were issued without any prior adversary hearing on the question of the obscenity of the material to be seized. It is clear, then, that before we are presented with the issue of the constitutionality of the Maryland statutes, we must decide whether the procedure followed in the latter classification of cases was constitutionally permissible.

Although this issue has been the subject of too many recent opinions to list here, we feel that the language of A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), and Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969) is controlling as to seizure without an adversary hearing. In Quantity of Books, an ex parte order of a Kansas trial court authorizing seizure and destruction of allegedly obscene novels was reversed by the Supreme Court. In so doing, the Court stated that the Constitution requires a procedure "designed to focus searchingly on the question of obscenity." The Court therefore concluded that "in not first affording P-K [news service] an adversary hearing, the procedure leading to the seizure order was constitutionally deficient." 378 U.S. at 210-11, 84 S.Ct. at 1726. Similarly, in Tyrone, supra, the Fourth Circuit, finding support in Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968), held that a prior adversary hearing is a constitutional prerequisite to seizure of a motion picture for violation of obscenity laws. In reaching this decision, the court stated that for this purpose, there was no significant difference between motion pictures and books. The court further stated:

The hearing, of course, is not designed to facilitate the display of obscene material, for public obscenity is not constitutionally protected. Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); see Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) (dictum). On the contrary, as the opinion of the Court in A Quantity of Books makes clear, the purpose of the hearing is to safeguard against governmental suppression of nonobscene expression. With movies, as with books, "the separation of legitimate from illegitimate speech calls for * * * sensitive tools * * *." [citations omitted] 410 F.2d 639, at 641.

In the case before us, it is admitted that no adversary hearing took place before the issuance and execution of the warrants pursuant to which the material in question was seized. It is equally clear that, in view of our above statements, material seized pursuant to these warrants must be returned. Article 27, sec. 551, Md. Code Ann. (1967 Repl.Vol.) cannot constitutionally be applied to this type of situation. It should be noted, however, that sec. 551 does not preclude an adversary hearing and such a proceeding would seem consistent with sec. 418A of article 27 (injunctive procedure). Therefore, the defendants will be enjoined from seizing allegedly obscene material in the future without a prior adversary hearing on the issue of obscenity. The State may retain that material which it purchased, as enumerated in the various affidavits filed as exhibits in this case, but must return the remainder.

The plaintiff in this case also asks us to declare that a similar adversary hearing is a constitutional prerequisite to an arrest on obscenity charges. From the complaint filed in this case, it appears that arrests were made only after indictment. Therefore, we are not presented with, nor do we decide, the question of what procedure must be followed prior to indictment; we merely pass on the procedure employed in this case — purchase, indictment, arrest.

Although several recent cases have enunciated the general proposition that an adversary hearing on the issue of obscenity of the publications in question must be held before arrest, Delta Book Distributors, Inc. v. Cronvich, 304 F. Supp. 662 (E.D.La. 1969) (3-judge court); Sokolic v. Ryan, 304 F. Supp. 213 (S.D.Ga. 1969); Cambist Films, Inc. v. Illinois, 292 F. Supp. 185 (N.D.Ill. 1968), we do not feel, on the facts presented to us, that this is an entirely proper view. The basic justification for this view is that a procedure which does not include an adversary hearing prior to arrest acts as a prior restraint on the exercise of first amendment rights. We believe, however, as did the court in Milky Way Productions, Inc. v. Leary, 305 F. Supp. 288 (S.D.N Y 1969) (3-judge court), aff'd, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78 (1970), that on balance the traditional criminal process, with its established safeguards, is "surely permissible, and very possibly preferred, [as a vehicle] for enforcing bans against obscenity." Id. at 297. In reaching its conclusion, the court said:

It is of interest in this connection, if by no means decisive, that plaintiffs' theory, if accepted, would have invalidated both federal and state convictions under obscenity statutes which have in the recent past been upheld by the Supreme Court. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966). A point of greater importance, both as a matter of legal history and practical judgment, is the fact that the prior adversary proceeding the plaintiffs demand would not serve to eliminate either the "chill" or the "prior restraint" against which they contend. It does not appear that there were any arrests in the present cases before a judicial officer had scrutinized the materials and determined that warrants should issue. All that, like the proceedings of a grand jury, was accomplished ex parte — without either the possible benefit to the accused or the potentially "chilling" effect upon others of adversary proceedings. The result, at least in terms of history, is to avoid any traditional form of "prior restraint" because the first overt impact upon the allegedly protected area comes at a time when all the protections and favorable presumptions of the criminal process are available to the defendant. 305 F. Supp. at 296-97.

We are convinced that the requirement of an adversary hearing prior to seizure, in combination with the traditional safeguards inherent in a criminal prosecution, will adequately protect the plaintiff's first amendment rights.

The questions of the constitutionality of the state obscenity statutes and injunctive relief against prosecutions pursuant to those statutes present a more delicate balancing problem. 28 U.S.C. § 2283 provides that:

A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.

Although unquestionably, in certain narrowly defined areas, a federal court may enjoin state prosecutions, see Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), this statute, "regardless of the ultimate extent of its reach is at least and unquestionably a rule of comity. It evidences the historic concern of Congress over the `special delicacy of the adjustment to be preserved between federal equitable power and state administration of its own law * * *.'" Carter v. Gautier, 305 F. Supp. 1098, 1101 (M.D.Ga. 1969).

In this case we have to strike a balance between protection of the first amendment rights of the plaintiff, and the maintenance of the federal system of administration of justice. In Dombrowski, supra, in addition to the allegation of a facially unconstitutional statute, the complaint also contained allegations of bad faith enforcement by state officials. Although the plaintiff intimated that such bad faith existed in this case, we fail to see any evidence whatsoever of any conduct other than an attempt to fairly enforce the laws of the State of Maryland. Furthermore, before a federal court will intervene in a state criminal prosecution, there must be a showing of danger of irreparable injury, both "great and immediate." Douglas v. Jeanette, 319 U.S. 157, 164, 63 S.Ct. 877, 87 L.Ed. 1324 (1943). It is also clear that the injury "incidental to every criminal proceeding brought lawfully and in good faith" does not constitute such irreparable injury. Id. at 164, 63 S.Ct. at 881. See also Zwickler v. Koota, supra. We feel that by requiring a prior adversary hearing before a seizure of material can take place, we have protected plaintiff's important first amendment rights. It is clear that a state has the power to regulate obscenity. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). Since the procedure which we adopt today will afford the plaintiff the maximum protection against arbitrary suppression of constitutionally protected material, we do not feel that injunctive relief is proper.

Although it is clear that the questions of injunctive and declaratory relief are not the same, and a request for declaratory relief must be considered separately from the consideration of injunctive relief against the enforcement of that statute, we conclude that declaratory relief is not proper under these circumstances. In Zwickler v. Koota, supra, the Supreme Court stated that federal courts should not abstain from declaring constitutional rights arising from the first amendment, except where a state statute is susceptible to a construction by a state court "that would avoid or modify the constitutional question." 389 U.S. at 249, 88 S.Ct. at 396. In this case the plaintiff does not challenge the right of a state to regulate obscenity. Rather the plaintiff challenges the state's right to regulate sales of material which are not made to minors, not offered in such a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to them, and not in a manner which amounts to pandering within the principles stated in Ginzburg v. United States, 383 U.S. 463 at 465-66, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966). While it is unclear whether sales made under these circumstances are constitutionally protected, see Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 1498 (1969); Karalexis v. Byrne, 306 F. Supp. 1363 (D.Mass.), stay granted, 396 U.S. 976, 90 S.Ct. 469, 24 L.Ed.2d 447, 486 (1969), prob. juris. noted, 397 U.S. 985, 90 S.Ct. 1123, 25 L.Ed.2d 394 (1970); United States v. 4,400 Copies of Magazines, 276 F. Supp. 902 (D.Md. 1967), it is clear that the statutes in question are susceptible to a constitutional construction in either event. For this reason we feel that this determination should be left to the courts of the State of Maryland.

Counsel will prepare an order in accordance with this opinion.

THOMSEN, District Judge, concurs.

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