Flack v. Municipal Court for Anaheim-Fullerton JudicialDist. of Orange County

• Decision Date: 03 July 1967
• Docket Number: ANAHEIM-FULLERTON
• Court: California Supreme Court
• Parties: , 429 P.2d 192 Jack FLACK and Leonard Earl Stephenson, Plaintiffs and Appellants, v. The MUNICIPAL COURT FOR theJUDICIAL DISTRICT OF ORANGE COUNTY, Defendant and Respondent. L.A. 28782. In Bank

Page 872

59 Cal.Rptr. 872

66 Cal.2d 981, 429 P.2d 192

Jack FLACK and Leonard Earl Stephenson, Plaintiffs and Appellants, v. The MUNICIPAL COURT FOR the ANAHEIM-FULLERTON JUDICIAL DISTRICT OF ORANGE COUNTY, Defendant and Respondent.

L.A. 28782.

Supreme Court of California,

In Bank.

July 3, 1967.

Rehearing Denied July 26, 1967.

Stanley Fleishman and Martha Goldin, Hollywood, for plaintiffs and appellants.

Joseph B. Geisler, City Atty., Lloyd J. Goldwater, John J. Gallagher and John F. F. Bovee, Deputy City Attys., for defendant and respondent.

MOSK, Justice.

In this action for writ of mandate we are called upon to determine whether law enforcement officers have used sufficiently 'sensitive tools' ¹ in attempting to curb alleged obscenity.

Plaintiffs (hereinafter called petitioners appeal from an adverse judgment on their complaint for writ of mandate to compel respondent to return an allegedly obscene film seized at the time of their arrest. We are not called upon in this proceeding to ascertain whether the film is in law or fact obscene.

Petitioners contend that the seizure of the film without a search warrant or other judicial determination of the allegedly obscene character of the film, violates guarantees contained in the First Amendment of the United States Constitution by acting as a prior restraint on freedom of expression. For the reasons stated hereinafter, we conclude that the procedures employed in the present matter do violence to those constitutional protections and that the trial court should be directed to issue a writ of mandate as prayed.

Petitioner Flack is the owner of the Garden Theater in the City of Anaheim; petitioner Stephenson is employed at that theater. On April 27, 1965, the film 'Sexus,' apparently related to a Henry Miller book of the same title, was exhibited at the Garden Theater, as it had been for each night of the preceding two weeks. In the audience at the time were Officers Thomson and Finley of the Anaheim Police Department. After viewing the film, and believing 'that it constituted an exhibition of obscene matter,' the officers arrested petitioners and seized the film. Neither search nor arrest warrants had previously been secured.

On April 28, 1965, each of the petitioners was charged in a two-count complaint with violations of Penal Code section 311.2 (exhibiting obscene matter) and section 650 1/2 (outraging public decency). Demurrers were sustained without leave to amend as to the counts charging violation of section 650 1/2; however, they were overruled as to the counts alleging violation of section 311.2. Motions were also made to suppress evidence and for return of the film which petitioners alleged was illegally seized at the time of their arrest. These motions were denied. Thereafter, petitioners filed a verified complaint in the Orange County Superior Court for a writ of mandate, praying that the Anaheim Municipal Court be ordered to direct the return of the film 'Sexus.' An alternative writ issued; however, after a hearing, it was discharged and issuance of the peremptory writ was denied.

We are met at the threshold with respondent's contention that mandate will not lie to compel the return of property illegally seized, since, respondent asserts, a trial on the merits affords petitioners a plain, adequate and speedy remedy for the recovery of their film. Neither logic nor precedent impels us to this conclusion.

In People v. Gershenhorn (1964) 225 Cal.App.2d 122, 37 Cal.Rptr. 176 (hearing denied,) the defendant was arrested for bookmaking at his place of business and evidence was seized incident to his arrest. Thereafter, the grand jury returned four indictments against the defendant and others. In the meantime, warrants had been obtained to search other premises, based in part on facts learned from the search of the defendant's premises at the time of his arrest. After he was indicted, the defendant unsuccessfully moved in the superior court to suppress the evidence seized at the time of his arrest and for an order to return the evidence to him. The Court of Appeal held that the superior court had jurisdiction to order a return of the evidence, reasoning that 'one whose property is illegally seized may desire not only to prevent its use against him in a criminal case, but also to procure its return. In that case, he may, either as an alternative to, or in conjunction with, a motion to suppress, move for its return as was done here. If the property was seized under a void warrant, or if it was not the property described in a warrant, such a motion is expressly authorized by section 1540 of the Penal Code. If the property was Illegally seized without a warrant, the courts have allowed a similar motion.' (Italics added.) (Id at p. 125, 37 Cal.Rptr. at p. 177.) While the court dismissed the appeal because the order was nonappealable, it was careful to point out that 'Appellant is not, however, without remedy. Since the order is not otherwise reviewable, a discretionary review by Writ of Mandate from this court is available.' (Id. at p. 126, 37 Cal.Rptr. at p. 178.) Although Gershenhorn involved an allegedly invalid search warrant, the emphasized quotation above indicates mandate is also available in situations in which illegal seizures are made without warrants. To permit a summary remedy such as mandate when the police have acted with an invalid warrant, but deny redress when they proceed without a warrant, would penalize erroneous commission while rewarding deliberate or inept omission.

Any doubt on this subject should have been dispelled by our decision in Ballard v. Superior Court (1966) 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838, a case in which no search warrant was involved. In Ballard the defendant sought the return of tape recordings which were alleged to have been illegally made by the police. Although this court denied the relief requested for the reason that the police owned the tape recordings, we pointed out that generally 'one whose property has been illegally seized may obtain a writ of mandamus to compel the return of the property, if it is not contraband * * *. To protect a person from the deprivation of illegally seized property, which prevents him from using the property, the courts will afford a speedy determination of the legality of the seizure.' (Id. at p. 165, 49 Cal.Rptr. at p. 306, 410 P.2d at p. 842.)

Since Ballard is controlling, the propriety of the search and seizure here involved is properly before us. (See Aday v. Superior Court (1961) 55 Cal.2d 789, 799--800, 13 Cal.Rptr. 415, 362 P.2d 47; Gershenhorn v. Superior Court (1964) 227 Cal.App.2d 361, 364--365, 38 Cal.Rptr. 576; Dunn v. Municipal Court (1963) 220 Cal.App.2d 858, 867, 34 Cal.Rptr. 251; Aday v. Munici pal Court (1962) 210 Cal.App.2d 229, 26 Cal.Rptr. 576; Cal. Criminal Law Practice (Cont.Ed. Bar 1964) §§ 5.11, 5.49, pp. 190, 212--213; Witkin, Cal. Criminal Procedure (1963) § 784, pp. 759--760; Comment, 54 Cal.L.Rev. (1966) 1070, 1075.)

Thus we turn to petitioners' contention that the seizure of the film violated rights guaranteed by the First Amendment, since it occurred in the absence of a search warrant and without prior judicial determination of the issue of obscenity.

'Adjustment of the inevitable conflict between free speech and other interests is a problem as persistent as it is perplexing.' (Niemotko v. State of Maryland (1951) 340 U.S. 268, 275, 71 S.Ct. 325, 329, 95 L.Ed. 267 (Frankfurter, J., concurring).) ² Such an accommodation becomes particularly elusive if the message conveyed is alleged to be obscene. Since obscenity does not come within the ambit of protection afforded to speech by the First Amendment, the states remain free to regulate and suppress obscenity through the implementation of their police powers. (Roth v. United States (1957) 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Beauharnais v. People of State of Illinois (1952) 343 U.S. 250, 266, 72 S.Ct. 725, 96 L.Ed. 919; Winters v. People of State of New York (1948) 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840; Chaplinsky v. State of New Hampshire (1942) 315 U.S. 568, 571--572, 62 S.Ct. 766, 86 L.Ed. 1031; Near v. State of Minnesota (1931) 283 U.S. 697, 716, 51 S.Ct. 625, 75 L.Ed. 1357; Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 912, 31 Cal.Rptr. 800, 383 P.2d 152.) However, 'under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity * * * without regard to the possible consequences for constitutionally protected speech.' (Marcus v. Search Warrants (1961) 367 U.S. 717, 731, 81 S.Ct. 1708, 1716, 6 L.Ed.2d 1127.)

Thus, in Marcus v. Search Warrants (1961) supra, 367 U.S. 717, 81 S.Ct. 1708, a Missouri statutory scheme permitting the search for and seizure of allegedly obscene publications without a prior determination of obscenity was held to infringe upon those safeguards which the due process clause of the Fourteenth Amendment demands to assure constitutional protection to nonobscene material. Under the Missouri scheme, the warrant for a search and seizure of obscene material issued on a sworn complaint filed with a judge or magistrate. If issued upon a proper complaint, the warrant required that the described articles be brought immediately before the issuing magistrate, who them set a date, not less than five nor more than 20 days after the seizure, for a hearing to determine whether the seized material was obscene. The owner of the material was entitled to appear at such hearing and defend against the charge. If the judge found the material obscene, he was required to order it to be publicly destroyed; if he found it was not obscene, he ordered its return to its owner.

The Supreme Court disapproved of the Missouri procedure because it authorized a court to issue a warrant for search and seizure on the sworn complaint of a police officer stating facts indicating that 'obscene material' was being...