Ellwest Stereo Theatres, Inc. v. Nichols

• Decision Date: 22 October 1975
• Docket Number: No. 73-690-Civ-J-S.,73-690-Civ-J-S.
• Citation: 403 F. Supp. 857
• Parties: ELLWEST STEREO THEATRES, INC., a Florida Corporation, Plaintiff, v. Donald G. NICHOLS, as State Attorney for the Fourth Judicial Circuit, in and for the State of Florida, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

403 F. Supp. 857

ELLWEST STEREO THEATRES, INC., a Florida Corporation, Plaintiff, v. Donald G. NICHOLS, as State Attorney for the Fourth Judicial Circuit, in and for the State of Florida, et al., Defendants.

No. 73-690-Civ-J-S.

United States District Court, M. D. Florida, Jacksonville Division.

October 22, 1975.

William J. Sheppard, Jacksonville, Fla., for plaintiff.

Robert L. Beals, Asst. Counsel, Jacksonville, Fla., for defendants.

Before SIMPSON, Circuit Judge, and SCOTT and REED, District Judges.

ORDER AND OPINION

PER CURIAM.

In this case, plaintiff Ellwest Stereo Theatres, Inc., challenges the constitutionality of Florida Obscenity Statutes Section 847.011,¹ alleging that utilization of this statute in civil and criminal prosecutions abridges rights secured to plaintiff by the First, Fifth and Fourteenth Amendments to the United States Constitution. Plaintiff seeks both injunctive and declaratory relief as well as any other relief this Court may deem necessary to protect plaintiff's rights. A three-judge court was convened pursuant to 28 U.S.C. §§ 2281 and 2284. Oral argument was heard on September 27, 1974. This Court has jurisdiction under 28 U.S.C. §§ 1331, 1343 and 2201, and also 42 U.S.C. § 1983. Furthermore, this Court finds that the issues herein have not been mooted by the dismissal of the criminal prosecution against plaintiff's film projectionist Clyde Maye Brock.²

The facts relevant to the issues in this case, as stipulated to by the parties herein on June 28, 1974, are easily stated:

Plaintiff, Ellwest Stereo Theatres, Inc., is a Florida corporation operating a motion picture theatre in Jacksonville, Florida. Plaintiff does not promote or advertise any of its films in a sensational or salacious manner. Rather, the films are shown only to consenting adults; no one under the age of 18 is admitted.

Defendant, T. Edward Austin, is the State Attorney for the Fourth Judicial Circuit of Florida. Defendant, Dale Carson, is the Sheriff of the Consolidated City of Jacksonville and of Duval County, Florida. Both defendants are officers of the state responsible for enforcement of state statutes.

On August 28, 1973, officers of the Sheriff's Department, Duval County, Florida, appeared at the Ellwest Stereo Theatre with two warrants for the seizure of certain designated films. The warrants had been issued by a county judge on the basis of affidavits which described in detail the contents of the films and which had been submitted to the judge by officers who had actually seen the films. The warrants were issued on an ex parte basis; without notice to the plaintiff and without the county judge having first personally viewed the films.

On October 30, 1973, a similar sequence of events occurred. This time only one film was seized. Subsequent to this seizure, plaintiff, through its employee Clyde Maye Brock, demanded a prompt judicial determination of the obscenity of the film through an adversary hearing. Brock further requested that he be furnished a copy of the film pending the hearing. A copy was provided on November 7, 1973, approximately one week after the request. No adversary hearing, however, was ever held.³ Furthermore, no criminal charges were ever brought against Ellwest Stereo Theatres. Criminal charges brought against Brock, the film projectionist, were dismissed January 14, 1974. This action was commenced August 29, 1973. An amended complaint was filed November 9, 1973.

Plaintiff challenges the constitutionality of Florida Statute § 847.011 on two grounds.⁴ First, plaintiff alleges that the statute is unconstitutionally overbroad because it authorizes the seizure of materials alleged to be obscene but presumed to be protected without first providing for either: 1) a judicially supervised adversary proceeding to determine the obscenity of the matter prior to seizure; or 2) a judicial observation or inspection of the material with respect to obscenity. Secondly, plaintiff alleges the statute is constitutionally deficient because it fails to provide for an expedited appeal or other measure of relieving suppressed expression from trial court error. Because this Court finds neither judicial observation prior to seizure nor an expedited appeal to be constitutionally required, the constitutionality of Section 847.011 will be upheld with regard to those particulars. The reasons for this Court's opinion are set forth below:

With regard to plaintiff's first allegation, the law is clear that any seizure of material like the allegedly obscene film in this case must be made pursuant to a warrant, issued by the proper judicial officer, after a determination by that officer that probable cause exists to believe that the seized material is offensive to the law. Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); Cf. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). In obscenity cases, because of the extremely sensitive nature of the First Amendment rights involved, the determination of probable cause must be made with particular care. Marcus v. Search Warrants, supra. As first announced in Marcus, and as adopted in Heller v. New York, supra at 488, 93 S. Ct. 2789, the question to be answered in obscenity cases is whether or not the neutral officer had a "full opportunity for independent judicial determination of probable cause prior to issuing the warrant, and that he was able to focus searchingly on the question of obscenity."

In Heller, the Supreme Court held that when allegedly obscene material was seized solely for the purpose of its preservation as evidence and when there was provision for a prompt judicial hearing after the seizure, then an adversary hearing prior to the seizure was not necessary for the determination of probable cause. The Court held that the magistrate's actual viewing of the films sufficed to assure the proper judicial scrutiny prior to the seizure.

In this case, the allegedly obscene material was seized for the purpose of its preservation as evidence.⁵ Also, there is provision for a prompt adversary hearing.⁶ The question squarely presented to this Court then is whether an affidavit describing in detail the scenes of an allegedly obscene film which was personally viewed by the affiant—like the magistrate's personal viewing of the film in Heller provides sufficient basis upon which the issuing officer can make an independent determination and focus searchingly on the question of obscenity. This Court holds that it does.

In Heller the Supreme Court did not address the particular question posited here. The reasoning employed by the Court is, however, of guidance. The Court reasoned that in light of the fact that the restraint imposed on expression was temporary, the prior determination of probable cause based upon the viewing prevented gross abuse of First Amendment rights and the prompt hearing afterwards assured that in marginal cases those same rights would be properly safeguarded.

Relevant to section 847.011, this Court sees no substantial differences as far as safeguarding First Amendment rights is concerned between the actual viewing of the film and the reading of the detailed affidavits. The affidavit was submitted by someone who had actually viewed the film. It did not contain merely the affiants' conclusions as to the obscenity of the film. It contained a detailed factual description, scene-by-scene of what was portrayed. After viewing the film, such a description could not be too difficult to draw accurately. From an accurate account the officer could sufficiently visualize the contents of the film so as to focus searchingly upon the question of obscenity and determine probable cause. Furthermore, in light of the fact that the film itself was likely to be promptly reviewed in an adversary hearing, it is unlikely the affiant would intentionally mislead the issuing officer. The protection of First Amendment rights would not, therefore, be substantially increased by requiring the issuing officer to actually view the film prior to seizure.

As a further matter, as set forth in the single-judge District Court's order of September 24, 1973, denying plaintiff's request for a preliminary injunction, public interest in the full and fair prosecution of obscenity cases would be unduly hampered by requiring the magistrate to personally view the film before authorizing its seizure.⁷

Plaintiff's second assertion is that the Florida statute is constitutionally defective because it fails to provide for an expedited appeal. Although section 847.011(8)(b) and (c) provides for an expedited trial procedure, the statute makes no provision for expedited appellate consideration by the District Court of Appeals.⁸ Plaintiff alleges that because no prompt review is specified in the statute, an unwarranted delay can and usually will occur before a final decision is made on the obscenity of particular material.⁹ In the meantime, plaintiff alleges that the rights to freedom of expression are unduly suppressed. Because of the absence of provision for prompt appellate review, plaintiff concludes that section 847.011 is unconstitutional. This Court does not agree.

The source of authority for plaintiff's challenge is the Supreme Court case of Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). In Freedman, the Court struck down a Maryland statute for its failure to provide a procedure for prompt, final judicial decision on the obscenity of films. The statute in question in that case required that before a film could be shown to the public in Maryland it first had to be submitted to and approved by the Maryland State Board of Censors. The statute did not require the Board, however, to state its approval or disapproval of the film within any specified period of...