Glass v. Eighth Judicial Dist. Court

• Decision Date: 02 July 1971
• Docket Number: No. 6303,6303
• Citation: 87 Nev. 321,486 P.2d 1180
• Parties: Erwin GLASS, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT, Respondent.
• Court: Nevada Supreme Court

Page 1180

486 P.2d 1180

87 Nev. 321

Erwin GLASS, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT, Respondent.

No. 6303.

Supreme Court of Nevada.

July 2, 1971.

Wiener, Goldwater & Galatz, Las Vegas, for appellant.

Robert List, Atty. Gen., Carson City, Roy A. Woofter, Dist. Atty., and John D. O'Brien, Sp. Deputy Dist. Atty., Las Vegas, for respondent.

OPINION

THOMPSON, Justice.

This original proceeding in certiorari tests the constitutionality of NRS 201.250 which, among other matters, makes it a misdemeanor knowingly to distribute or exhibit any obscene item. This remedy is appropriate to challenge the constitutionality of an ordinance or statute. NRS 34.020(3); City of Reno v. District Court, 83 Nev. 201, 427 P.2d 4 (1967).

It is the petitioner's contention that the criminal portions of our obscenity law are constitutionally inadequate since no provision is made for an adversary hearing on the issue of obscenity before the criminal procedures are invoked. The petitioner is the proprietor of a motion picture house and was charged with exhibiting allegedly obscene films entitled, 'The Muthers,' and 'Wanda, the Sadistic Hypnotist.' A search warrant was issued ex parte by a magistrate on the basis of an affidavit of a criminal investigator who had viewed each film the preceding day, and the films were seized. The investigator's affidavit recited his personal impressions of the films. The complaints were dismissed in the justice court on the ground that the seizure of the films was unconstitutional since there had not been a prior adversary hearing on the issue of obscenity. The district court reversed those dismissals and this independent certiorari proceeding was then instituted. We are not called upon to decide whether the films are in fact obscene.

1. It is settled that obscenity does not enjoy constitutional protection. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). It is equally clear that motion pictures are within the ambit of the constitutional guarantee of freedom of speech and of the press. Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952); Kingsley Intern. Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959); Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). Consequently, appropriate deference to the First Amendment is required since the public has the right to receive nonobscene materials. It is for this reason that a hearing designed to 'focus searchingly on the issue of obscenity' must occur prior to seizure. A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); Demich, Inc. v. Ferdon, 426 F.2d 643 (9 Cir. 1970), reversed on other grounds; Cambist Films, Inc. v. Duggan, 420 F.2d 687 (3 Cir. 1969); Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2 Cir. 1969); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4 Cir. 1969); Metzger v. Pearcy, 393 F.2d 202 (7 Cir. 1968). 'The separation of legitimate from illegitimate speech calls for * * * sensitive tools. * * *' A Quantity of Copies of Books v. Kansas, 378 U.S. at 212, 84 S.Ct. at 1727. The ex parte affidavit of a law officer stating what he viewed is not sufficient (Demich, Inc. v. Ferdon, supra; Cambist Films, Inc. v. Duggan, supra; Bethview Amusement Corp. v. Cahn, supra; Tyrone, Inc. v. Wilkinson, supra; Lee Art Theatre v. Virginia, supra), nor is it enough for the magistrate to view the film prior to seizure. Demich, Inc. v. Ferdon, supra, Tyrone, Inc. v. Wilkinson, supra.

We regard it as settled that the First and Fourteenth Amendments require that there be an adversary judicial hearing and determination of obscenity before a warrant may be issued to search and seize the single copies of allegedly obscene films. ¹ Compliance with the proscriptions of the Fourth Amendment is not sufficient. Although it is suggested that such a hearing is not required absent a 'massive' seizure as in Marcus v. Search Warrant, supra, and A Quantity of Copies of Books v. Kansas, supra, it is evident to us that the restraint following the seizure in this case may have been as serious in its consequences as the restraint following a massive seizure of one's books held for distribution and sale. Where one's First Amendment rights are exercised by exhibition, restraint clearly follows from seizure of the film to be exhibited. Demich, Inc. v. Ferdon, supra; Bethview Amusement Corp. v. Cahn, supra. We express no opinion upon the need for such an adversary hearing in situations other than the one before us.

2. We are not aware of any case holding that a criminal obscenity statute must contain a provision for such an adversary hearing in order to successfully withstand constitutional challenge. The adversary hearing requirement is directed solely to the validity of a seizure and has no bearing upon how a criminal statute is to be structured. Certiorari, although available to test the constitutionality of a statute, is not available to decide a question of the admissibility of evidence. Evidence obtained in violation of constitutional requirements may be suppressed. NRS 179.085; Cook v. State, 85 Nev. 692, 462 P.2d 523 (1969). This is an adequate legal remedy. Accordingly, we dismiss this petition for certiorari. The order of the district court, to the extent that it remanded the cases to the justice court for trial, shall stand. The matter of the admissibility of the seized films will there be resolved in line with this opinion if the prosecutor elects to proceed further. ²

ZENOFF, C.J., and GUNDERSON, J., concur.

MOWBRAY, Justice.

Respectfully, I dissent.

This original certiorari proceeding challenges the ruling of the district judge that ordered the petitioner, Erwin Glass, to stand trial on two criminal misdemeanor complaints charging Glass with violations of NRS 201.250 (exhibition of obscene motion pictures). The complaints were dismissed by a justice of the peace of the Las Vegas Justice Court on the ground that the seizure of the films by an investigator from the district attorney's office in Clark County was in derogation of Glass's constitutional rights because there had been no prior adversary hearing on the issue of obscenity before the films were seized. From that ruling the State appealed to the district court and won a reversal of the justice court's order. Glass is now before us on a writ of certiorari seeking review of the order the the district court. I would affirm the order of the district judge, and I would remand the case for trial in accordance with the order of the lower court.

On December 29, 1969, an investigator from the Clark County District Attorney's office read advertisements in two Las Vegas newspapers regarding the showing of two films in downtown Las Vegas: "WANDA (THE HYPNOTIST)'--LASHED INTO SUBMISSION!--FOR MATURE ADULTS ONLY' and "TITLE WITHHELD' ('The Muthers')--ONLY FOR THE MATURE ADULT WHO UNDERSTANDS'.

For two dollars, the investigator secured a ticket to the performances, and he viewed both films from about noon to approximately 3:20 p.m. Each film ran approximately 70 minutes. At 4:00 p.m. the investigator commenced the preparation of an affidavit testifying to the facts and circumstances of what he had seen. Thereafter, he consulted with a deputy district attorney. He concluded his statement with a request for a search warrant for the seizure of the two films, lest they be removed from the jurisdiction by transference.

The investigator then appeared before a justice of the peace in Las Vegas, who scrutinized the 'AFFIDAVIT IN SUPPORT OF AND PETITION FOR SEARCH WARRANT.' After careful study and scrutiny of the affidavit, the justice of the peace issued a search warrant. The films were seized, and Glass was charged with two violations of NRS 201.250 and released on his own recognizance.

On January 13, 1970, Glass sought a motion to dismiss both complaints, alleging violation of his rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution because he had not been afforded a prior adversary hearing on the issue of whether the films were obscene. The motion to dismiss was granted by a justice of the peace. ¹ The State then appealed to the district court, noting that the Nevada statute under which Glass was charged did not provide for nor require a prior adversary hearing in obscenity cases. ² Glass was charged under subsection 2 of NRS 201.250, supra, for wrongfully exhibiting the allegedly obscene movies, a misdemeanor. ³ The district judge agreed with the State's position, and he remanded the case to the justice court for trial. The district judge, in an able and well reasoned opinion, made it clear that prior to seizure there must be a judicial determination of obscenity based on facts and not on the conclusory determination of a police officer. The court below was satisfied that the 15-page factual recital under oath and the study thereof by the magistrate prior to the determination of obscenity constituted such an appropriate judicial determination. The district judge observed that it would be a practical impossibility for the magistrate to view the films in private and that it would demean the dignity of the court to require him to go to the theater for this purpose. The district judge also discerningly observed that the Supreme Court of the United States has not laid down a rule of procedure for all state courts requiring an adversary hearing to determine obscenity prior to seizure. I agree. Obscenity in whatever fomr is wholly unprotected by the free speech guaranty of the First Amendment. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The courts will not hesitate to enforce any valid law against obscenity. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct....