Opinion
No. 30165
Decided April 10, 1970.
Criminal law — Possession of obscene material — Motion picture film — Search and seizure — Adversary proceeding before issuance — Necessary to determine obscenity — R. C. 2905.34.
1. A search warrant issued for the seizure of allegedly obscene material without a prior adversary proceeding to determine the obscenity of the material is constitutionally deficient.
2. An arrest for an alleged violation of R. C. 2905.34, pertaining to possession of obscene material with the intention of wrongfully exhibiting it to others, is unlawful where not preceded by an adversary hearing to determine its obscenity.
3. Where the arrest of a person and seizure of allegedly obscene material in his possession are improper, the prosecution will be dismissed and the material so seized ordered returned to him.
Mr. Lee C. Falke, procecuting attorney, for plaintiff.
Mr. C. Dino Gianuglou, for defendant.
Defendant is before this court on an indictment charging him in the first count with unlawfully and knowingly selling a hard core pornographic motion picture film. In the second count he is charged with unlawfully and knowingly possessing hard core pornographic pamphlets and pictures with the unlawful intention of exhibiting the same wrongfully to other persons. All thereof is alleged to be a violation of R. C. 2905.34.
The cause came on for hearing on the motion of the defendant to quash each count in the indictment, to suppress the evidence and for an order to return the property so seized to the defendant.
The evidence presented in support of the motion is clear. On December 2, 1969, Robert B. Koverman, a Dayton Police Officer and also a student at the University of Dayton, in the capacity of such student, purchased from the defendant at the Gaiety Book Store in Dayton, Ohio, a reel of eight millimeter movie film. Koverman thereupon examined the reel, determined that it was a hard core pornographic film, after which he identified himself as a police officer and arrested the defendant for the sale of a lewd, obscene and lascivious film. Defendant was taken to police headquarters where he was formally booked and charged. At 2:45 a. m. on December 3, 1969, on the affidavit of Officer Koverman, a search warrant was obtained from a magistrate to search the trunk of defendant's automobile for obscene films and pamphlets. His affidavit was on information and belief received from fellow officers who received their information from alleged confidential informants to the effect that the defendant was selling obscene films and the like from the trunk of his automobile.
At this stage of the proceedings in this cause, the motion of the defendant invokes the several mandates of the Supreme Court of the United States pertaining to the prosecution of obscenity cases.
The motion of the defendant presents the question whether due process under the Fourteenth Amendment to the United States Constitution was denied the defendant by the conduct and procedures employed by Koverman and the police department of the city of Dayton prior to the return of the indictment.
It is evident that an alleged obscene motion picture is in the same classification as obscene literature. Freedman v. Maryland, 380 U.S. 51.
The question as to obscenity involves the First Amendment to the Constitution of the United States, the right of freedom of expression. State regulations and procedures with relation to the question of obscenity must conform to procedure that will insure against the curtailment of the constitutionally protected expression which is often separated from obscenity by a thin and uncertain line. Bantam Books v. Sullivan, 372 U.S. 58.
The Supreme Court of the United States has mandated that a search warrant authorizing the seizure of allegedly obscene material issued without an adversary hearing is constitutionally deficient. A Quantity of Copies of Books v. Kansas, 378 U.S. 205; Marcus v. Search Warrant, 367 U.S. 717.
A careful consideration of the propositions of law and authority compels a determination that there must be full compliance with the procedural safeguards as established by the Supreme Court of the United States that will constitutionally protect the right of free speech and expression before there may be a lawful arrest for the sale of an allegedly obscene film and before pamphlets and pictures held for unlawful exhibition may be seized.
Under the mandate of the Supreme Court of the United States a police officer has no right to make a judgment as to whether a particular motion picture, pamphlet or other expression is obscene.
Also, before a search warrant may be issued for the seizure of alleged pornographic material, a magistrate must make a determination in an adversary procedure as to its obscenity.
The Supreme Court of the United States has also said that it is no answer to say that obscene books are contraband and that consequently the standards governing searches and seizures of allegedly obscene books should not differ from those applied with respect to narcotics, gambling paraphernalia and other contraband. A Quantity of Books v. Kansas, supra.
It is obvious to this court, then, that the constitutional proscriptions enunciated by the Supreme Court of the United States require that Koverman take the movie film which he purchased to a magistrate, that a hearing date be set with notice to the seller, giving him an opportunity to appear and be heard, whereby a determination may be made as to the obscenity of the motion picture. In the event the magistrate determines that it is obscene, then the magistrate would have the power to issue a warrant for the arrest of the seller.
In the alternative, the law enforcement officers must follow the procedure provided for in R. C. 2905.343, which provides for an opportunity of an orderly civil proceeding to determine the question of obscenity without resorting to a criminal proceeding.
With respect to the alleged obscene material seized from the trunk of defendant's car, the police officers would, in some way, have to obtain lawful possession thereof and go through the same procedure for a determination of obscenity before an arrest could be made or before a search warrant could be lawfully issued for the seizure of further such alleged obscene material.
This court observes that the Supreme Court of the United States has also set the guidelines for the determination of whether or not a book, film or other writing or publication can be considered obscene. The following standards must coalesce, to wit:
1. It must be established whether the dominant theme of the material taken as a whole appeals to the prurient interests in sex.
2. That the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters.
3. That the material is utterly without redeeming social value.
Thus, these three standards must be met before a book or film or publication can be declared obscene by the magistrate. A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts, 383 U.S. 413.
In accordance with the foregoing, then, this court is of the opinion that the arrest of the defendant was illegal because at the time of the arrest there had been no determination that a crime had been committed by the defendant; further, that the search and seizure of the trunk of the automobile of the defendant was illegal because it was the result of the issuance of a constitutionally deficient search warrant.
The court, therefore, concludes that the motion of the defendant is well taken and it is hereby sustained.
Wherefore the court hereby quashes both counts in the indictment, suppresses all evidence obtained by the arresting and investigating officers applicable to each count in the indictment, and it is further the order of the court that all such evidence so obtained be returned to the defendant forthwith.
Judgment accordingly.