Cinema Classics, Ltd. v. Busch

• Decision Date: 22 February 1972
• Docket Number: No. 72-30.,72-30.
• Citation: 339 F. Supp. 43
• Court: U.S. District Court — Central District of California
• Parties: CINEMA CLASSICS, LTD., Inc., a California corporation, et al., Plaintiffs, v. Joseph P. BUSCH, Jr., District Attorney for the County of Los Angeles, State of California, et al., Defendants.

339 F. Supp. 43

CINEMA CLASSICS, LTD., Inc., a California corporation, et al., Plaintiffs, v. Joseph P. BUSCH, Jr., District Attorney for the County of Los Angeles, State of California, et al., Defendants.

No. 72-30.

United States District Court, C. D. California.

February 22, 1972.

Stanley Fleishman, Hollywood, Cal., for plaintiffs.

John D. Maharg, Los Angeles County Counsel by Michael H. Dougherty, Deputy County Counsel, Los Angeles, Cal., for defendants Busch, Pitchess, Hippler, Kenneally, Nottingham, George and Jordan.

Roger Arnegergh, City Atty. of Los Angeles by David M. Schacter, Deputy City Atty., Los Angeles, Cal., for defendants Davis, Weller and Minton.

Before ELY, Circuit Judge, and CURTIS and HILL, District Judges.

ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

IRVING HILL, District Judge:

The Court heard argument on the said motion and has considered the various documents and affidavits filed in support of the motion and in opposition thereto, and has determined to grant Plaintiffs a preliminary injunction, the terms of which are specified hereinafter.

All findings of fact and conclusions of law herein made are made only on the basis of the facts as they now appear to us and without prejudice to the urging of contrary facts and legal conclusions at the trial of the case.

Plaintiffs are five corporations which appear to be interconnected to some degree through common officers and directors. All are housed in a single place of business on Pico Boulevard in Los Angeles. They are engaged in various aspects of the publication and distribution of sexually oriented materials including motion pictures, books, magazines, playing cards, etc. They sue various officials and law enforcement officers of Los Angeles County including its District Attorney, Sheriff, a Deputy District Attorney and a number of Deputy Sheriffs. They also sue the Los Angeles City Police Chief and two of his officers. The complaint asserts a number of grounds of federal jurisdiction including (1) the Civil Rights Acts, 42 U.S.C. § 1983ff., and (2) the unconstitutionality of Sections 1523-1542, inclusive, of the California Penal Code. These latter statutes govern both the issuance, service and execution of search warrants and the post-execution remedies for the suppression or return of improperly seized materials.

The action arises out of two separate searches and seizures which occurred at the premises jointly occupied by the Plaintiffs, one on December 29, 1971, and the other on January 11, 1972. The first was carried out by the Defendants employed by the City of Los Angeles and the second by Defendants employed by the County.

Before making ultimate findings of fact concerning these seizures and applying the law to those ultimate findings, it is appropriate to set forth in some detail the facts surrounding each seizure as the facts now appear.

The December seizure was made pursuant to a warrant issued by a Judge of the California Superior Court. There is no indication that he was shown any of Plaintiffs' materials before signing it. It authorized "entry into the ... business building occupied by the Plaintiffs including all rooms, attics, basements and other parts therein, the surrounding grounds and any out buildings attached or unattached, located thereon."

The warrant authorized the seizure of all motion picture films, all still pictures and any undeveloped film and negatives "in quantity which would show the intent for sale and distribution" and which depicted "acts of oral copulation, masturbation, sexual intercourse, sodomy or sexual acts between humans and animals." It directed entry into "all storage areas, desks, filing cabinets and safes or any containers, where such films, pictures, negatives and undeveloped film may be found." It further directed the seizure of "any business records, cancelled checks, receipts showing the sales or distribution or payment of processing films and payment to people participating therein."

The only affidavit upon which the warrant was issued was one made by a police officer, Defendant Weller. The affidavit does not claim that the affiant obtained any film or picture by purchase or otherwise from Plaintiffs. It does not claim that the affiant had viewed any film or picture originating with Plaintiffs. It asserts that twenty-seven titles of motion pictures were seized from another location in a neighboring city twelve days earlier, which films were "believed" to have come originally from Plaintiffs' premises. It says that said films had been viewed by a Municipal Judge who stated that in his opinion the films were obscene. The affiant attached to his affidavit some order forms which he said were those of Plaintiffs although they show an entirely different address thereon. Each order form is accompanied by a number of still pictures, purportedly one frame from each of several films. In each case, the one frame shows a copulative act of two, three or four persons. There is no description of the films involved anywhere in the affidavit except the titles given to them on the order form. Typical of these titles are "#42 Young Girl is Raped by Two Men, Shocking," "#43 Black Rape. Black Man and a Blonde," "#46 a Young Girl Makes it with a Shetland Pony."

The warrant was served in an unannounced expedition consisting of approximately eleven police officers who were on the premises about eight hours and apparently arrived with trucks. In a news story one of the supervising police officers is quoted as boasting that the police took possession of "still and motion picture film valued at more than $1.5 million ..."

There are some disputes of fact dealing with minor matters in the affidavits furnished to us. But certain facts are clearly established. The officers executing the warrant seized and took approximately 13,000 reels of motion picture film, including the master negatives of four films. Up to 500 copies of the same film were seized. All of the motion picture films on the premises were seized and none was left. Plaintiffs claim that the officers did not view any of the films prior to seizing them. Giving maximum credibility to the affidavits of the police, it appears that, at most, only random and cursory attempts were made to determine whether the materials seized conformed to the specification of the warrant¹ and that most of the films seized were not viewed at all.

The approximately 25 employees on the premises were kept standing in a single small room estimated to be eight feet by ten feet for about 45 minutes. Purses of women employees were examined. Papers, records and documents, including metered and sealed mail, were seized, apparently without prior examination, and thrown at random into boxes and carried away. The Secretary of one of Plaintiff corporations says that "virtually all of its business records necessary for the conduct of its business" were taken. And this claim is not denied.

While the operation was going on, representatives of the various communications media, including persons with radio and television equipment, came to the premises to describe and take pictures of what was happening.

This massive seizure took place more than six weeks ago. No arrest has yet been made of any person resulting from this seizure nor has any criminal case apparently been commenced as a result thereof. The city authorities have not compiled, or at least have not yet supplied us, an intelligible inventory of the materials seized.

Now to the facts of the second seizure. On January 11, 1972, thirteen days after the first seizure, a different set of law officers appeared armed with a different warrant. The officers who appeared were approximately ten deputy sheriffs of the Los Angeles Sheriff's Department, accompanied by a Deputy District Attorney. The warrant was one issued by a Municipal Court Judge. The warrant was quite limited in the description of what could be seized thereunder. It permitted the seizure of "eight millimeter color and or black and white films which are sexually oriented and which depict specific acts of oral copulation, sexual intercourse and masturbation together with any or all brochures and any advertising matter describing said films and any or all said blanks, business forms and other business records which might tend to show the identity of the operator of the business ..."

We have not been furnished with any affidavit which underlies the said warrant. As far as we know, there was none. But we do have the affidavit of Deputy Sheriff Nottingham who apparently procured the issuance of the warrant. He states that the warrant was based upon his having ordered and received one film for $40 which he characterizes as "hard-core pornography" but does not otherwise describe. He says that he received, with the film, eight brochures containing "many photographs of actual sexual acts." The brochures, Nottingham alleges, also offered various printed materials and sexual appliances for sale.

The officers took about four and one-half hours to execute this warrant. They seized approximately 3,900 reels of motion picture film and over 100,000 brochures. Plaintiffs claim that their entire stock in trade was taken both as to films and other printed material. Defendants do not deny taking all of the films on the premises. They have furnished us an inventory showing that dozens and in some instances hundreds of copies of given films were taken. Defendants claim to have left some brochures on the premises.

The officers went beyond the language of the warrant and also seized about 16,000 still photographs, about 1,250 packs of playing cards, all of the same printing, and thousands of transparencies and negatives. In addition, there was seized what Plaintiffs describe as all of the insurance policies, tax returns, payment records, accounts receivable and payroll records, W-2 forms, copyright certificates, ledgers and all other records on the premises...