Europo Books, Inc. v. Pomerleau, s. 1033

• Decision Date: 10 January 1979
• Docket Number: Nos. 1033,1035,1036 and 1037,1034,s. 1033
• Citation: 395 A.2d 1195,41 Md.App. 114
• Parties: EUROPO BOOKS, INC. T/A Sweden Book Store, et al. v. Donald D. POMERLEAU et al. ELLWEST STEREO THEATRES OF MARYLAND, INC. v. Donald D. POMERLEAU et al. 400 EAST BALTIMORE STREET, INC. T/A Troc Pleasure Palace, et al. v. Donald D. POMERLEAU et al. FAYETTE NEWS CENTER v. Donald D. POMERLEAU et al. DENTEN CORPORATION T/A Follies Books et al. v. Donald D. POMERLEAU et al.
• Court: Court of Special Appeals of Maryland

Page 114

41 Md.App. 114

395 A.2d 1195

EUROPO BOOKS, INC. T/A Sweden Book Store, et al. v. Donald D. POMERLEAU et al.

ELLWEST STEREO THEATRES OF MARYLAND, INC. v. Donald D. POMERLEAU et al.

400 EAST BALTIMORE STREET, INC. T/A Troc Pleasure Palace, et al. v. Donald D. POMERLEAU et al.

FAYETTE NEWS CENTER v. Donald D. POMERLEAU et al.

DENTEN CORPORATION T/A Follies Books et al. v. Donald D. POMERLEAU et al.

Nos. 1033, 1034, 1035, 1036 and 1037.

Court of Special Appeals of Maryland.

Jan. 10, 1979.

Certiorari Denied Jan. 18, 1979.

Certiorari Denied Jan. 31, 1979.

Arnold M. Weiner and Richard V. Falcon, Baltimore, with whom were Gerard P. Martin and Ira C. Cooke, Baltimore, on the brief for appellants, Europa Books, Inc. T/A Sweden Book Store, et al.

Burton W. Sandler, Towson, for appellants, 400 East Baltimore Street, Inc. T/A Troc Pleasure Palace et al. and Denten Corp. T/A Follies Books, et al.

Jon F. Oster, Deputy Atty. Gen. and F. Todd Taylor, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Francis X. Pugh, Asst. Atty. Gen. and John C. Themelis, Asst. State's Atty., on the brief, for appellees.

Argued before GILBERT, C. J., and MORTON and COUCH, JJ.

"PER CURIAM ORDER

These causes having come before this court on argument after an order of consolidation and advancement it is this 24th day of November, 1978, by the Court of Special Appeals of Maryland, ORDERED, that the judgments hereinbefore entered by the Circuit Court of Baltimore City be, and they are hereby, reversed, and it is further, ORDERED, that the causes be remanded to the Circuit Court of Baltimore City with instructions to the Chancellor to issue forthwith permanent injunctions restraining the appellees from seizing motion picture projectors belonging to the appellants if the appellants surrender films allegedly being shown in violation of Maryland Code Article 66A, upon demand, after legal arrest or the production of a valid search and seizure warrant.

The reasons for this per curiam order to be stated in an opinion to be filed at a later date. Costs to be paid by appellees. The Mandate shall issue forthwith."

We now explain why we issued the above-quoted per curiam order.

On October 31, 1978, Europo Books, Inc., ¹ trading as Sweden Book Store, filed in the Circuit Court of Baltimore County a petition for an Ex parte injunction to restrain Donald D. Pomerleau, Commissioner of the Baltimore City Police Department and four named individuals who were members of the police department's Vice Squad, from seizing motion picture film projectors that were used to display a film that had not been licensed by the Maryland State Board of Censors. Md.Ann.Code art. 66A, § 2. The same day a temporary injunction was issued which directed the defendants "not to seize any film projectors during the execution of any search and seizure warrants at the premises of Sweden Book Store. . . ." The injunction, by its own terms was to expire on November 8, 1978. ²

After a hearing, the issuing judge terminated the temporary injunctions, sustained the defendants' preliminary objections ³ and dismissed the petition. An immediate appeal was taken to this Court. We advanced the case and heard oral argument on November 24, 1978. The same day we issued the per curiam order reversing the Circuit Court.

Europo and others ⁴ are engaged in the business of selling, distributing and exhibiting books, magazines and motion picture films. At the core of the instant appeal is the alleged practice of the appellants of showing in their so-called "Peep Shows" motion picture film that has not been licensed by the State. ⁵ Any question as to whether the film shown at "Peep Shows" is within the ambit of the Board of Motion Picture Censors was resolved in Sanza v. Maryland State Board of Censors, 245 Md. 319, 226 A.2d 317 (1967), and underscored in Marques v. State, 267 Md. 542, 298 A.2d 408 (1973), the latter stating "that the films used for the 'peep shows' " are subject to the review mandated by Md.Ann.Code art. 66A. See also Star v. Preller, 375 F.Supp. 1093 (D.Md.) Aff'd, 419 U.S. 956, 95 S.Ct. 217, 42 L.Ed.2d 173 (1974). Appellants do not attack the constitutionality of Article 66A, nor do they challenge the seizure of the unlicensed film. They do, however, vigorously oppose the practice of seizing the projectors into which the unlicensed film is fed for the purpose of viewing.

We are informed that on successive days in the month of October 1978, vice squad officers entered the business establishments of each of the appellants, and after inserting the necessary sum of money into a coin operated device ⁶ supposedly to observe whether the film bore the seal of approval by the Censor Board, ⁷ titles of the films were noted and subsequently compared with the records of the Censor Board in order to ascertain whether these particular films had been licensed. Following the comparison, which apparently revealed the film had not been licensed, search and seizure warrants were obtained in the Circuit Court of Baltimore and in the District Court, First District.

According to the appellants, and not disputed by the appellees, the warrants authorized the "seizure of two specifically named movies and 'other movies offered for viewing not having previously been submitted to the . . . Board.' " Notwithstanding the language of the warrant, "200 projectors were seized from premises owned and operated by the" appellants. On oral argument the State conceded that the question of whether the Censor's seal has been affixed to the film can be ascertained by merely looking at the film, without its having to be shown on a screen by a projector. Police officers testified that the "seizure of the projectors was necessitated by their lack of training in operating motion picture projectors and their fear that they would damage the films if they attempted to remove them." The projectors appear to be standard 8mm and 16mm projectors similar in kind to those used in individual homes for the purpose of showing so-called "home movies." There has been a modification to the projectors that were seized in the instant case which allows the projector to be cassette loaded, and which should make removal of the film easier.

Appellants suggest that "difficulty" in removing the film is but "eyewash" to cover the economic sanctions that the police are inflicting upon the appellants. We observe that prior to the seizures in the instant case, the projectors were not seized by the police, but that film was removed from the projector by an employee of the business concerned, and it was then turned over to the police.

The theory advanced by the State for the seizure of the projectors is that they are "evidence of the crime" of showing unlicensed motion picture film. Why the film, itself, coupled with the testimony of the officer that it had been exhibited, would not suffice is unexplained. Neither is there an explanation as to how the projector adds to the State's proof or in any manner strengthens the State's case.

We believe the State had no more right to seize the projector because the film was unlicensed than it would to seize a motor vehicle because the driver was unlicensed, or to seize the printing presses because the newspaper contains patently obscene matter.

It is important to bear in mind that we are here dealing not with a question of obscenity, but solely with a licensing statute. Confiscation of personal property has not been sanctioned by the Legislature as an acceptable punishment for violating such a licensing statute. The tactics used in the case now before us, if judicially approved, could lead to other seizures in other licensing cases. For example:

1) The unlicensed plumber could have his tools seized as evidence that he performed plumbing work without a license.

2) A person practicing law without having been licensed could have his law library seized as evidence.

3) Much the same could be said of the person practicing medicine without having been authorized to do so.

One can imagine the hue and cry if depositors' money in an unlicensed bank was seized as evidence that the bank was doing business while unlicensed.

The appellees, however, aver that they are perfectly willing to return the properties as soon as the criminal proceeding has terminated. That ordinarily means following acquittal or, if there be a conviction, when the time for appeal to a higher tribunal has expired without the noting of an appeal. Perhaps overlooked or ignored in the appellees' willingness to return the projectors is the chilling effect the offer has on the right of appeal. It is very much a "damned if you do and damned if you don't" proposition. The appellant is forced either to pay the penalty meted in the first instance or pay what could prove to be a larger penalty taking the form of an economic setback occasioned by the loss of the equipment during the appellate process. The end result is that the appellant is placed in a no-win position.

A case similar to that before us was decided by the Court of Appeals, Second District, Division 4 of California. That Court, in Porno, Inc. v. Municipal Court, Los Angeles Judicial District, 33 Cal.App.3d 122, 108 Cal.Rptr. 797 (1973), upheld the judgment of the Superior Court of Los Angeles County which had overturned the municipal court and directed that motion picture projectors which had been seized pursuant to search warrants be returned to Porno.

The appellate court observed that "(t)he reels of film were not permanently attached to the...