People v. Superior Court (Freeman)

• Decision Date: 22 April 1975
• Citation: 534 P.2d 393,120 Cal.Rptr. 697,14 Cal.3d 82
• Court: California Supreme Court
• Parties: , 534 P.2d 393 The PEOPLE, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Harold FREEMAN et al., Real Parties in Interest. L.A. 30363.

Page 697

120 Cal.Rptr. 697

14 Cal.3d 82, 534 P.2d 393

The PEOPLE, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Harold FREEMAN et al., Real Parties in Interest.

L.A. 30363.

Supreme Court of California In Bank.

April 22, 1975.

Fleishman, McDaniel, Brown & Weston, David M. Brown and John H. Weston, Hollywood, for real parties in interest.

No appearance for respondent.

Joseph P. Busch, Dist. Atty., Harry B. Sondheim and Sterling S. Suga, Deputy Dist. Attys., for petitioner.

MOSK, Justice.

Defendants, real parties in interest herein, were charged with conspiracy to violate Penal Code section 311.2 ¹ Their motion to suppress the evidence on the ground of illegal search and seizure was granted, and the People seek review by statutory writ of mandate. (Pen.Code, § 1538.5, subd. (o).

In Flack v. Municipal Court (1967) 66 Cal.2d 981, 59 Cal.Rptr. 872, 429 P.2d 192, we considered whether seizure of motion picture film alleged to be obscene without a search warrant or prior judicial determination of obscenity violates the First Amendment to the United States Constitution. ² Relying on Marcus v. Search Warrants (1961) 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127, and A Quantity of Books v. Kansas (1964) 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809, ³ we concluded: 'Within the precinct of the First Amendment, only the requirement that a search warrant be obtained prior to any search and seizure assures a free society that the sensitive determination of obscenity will be made judicially and not Ad hoc by police officers in the field.' (Fn. omitted.) (Flack, at p. 992 of 66 Cal.2d, at p. 879 of 59 Cal.Rptr., at p. 199 of 429 P.2d.) We determined that 'with the exception of a situation involving a legitimate emergency, even if the search is contemporaneous with an arrest, a search warrant must be secured prior to any search for or seizure of material alleged to be obscene.' (Fns. omitted.) (Id. at p. 991, 59 Cal.Rptr. at p. 878, 429 P.2d at p. 198.)

The United States Supreme Court has recently reiterated these same principles. In Roaden v. Kentucky (1973) 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757, a county sheriff viewed a sexually explicit film at a local drive-in theatre, determined it to be obscene, and in the course of arresting the defendant seized a copy of the film as evidence. The court proceeded from the premise that 'A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material. (Citation.)' (Id. at p. 501, 93 S.Ct. at p. 2800.) Thus 'The seizure of instruments of a crime, such as a pistol or a knife, or 'contraband or stolen goods or objects dangerous in themselves,' . . . are to be distinguished from quantities of books and movie films when a court apparaises the reasonableness of the seizure under Fourth or Fourteenth Amendment standards.' (Id. at p. 502, 93 S.Ct. at p. 2800.) In applying the special rules governing seizure of allegedly obscene materials the majority reaffirmed the holdings in Marcus, Quantity of Books, and Lee Art Theatre v. Virginia (1968) 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313, ⁴ and concluded: 'If, as Marcus and Lee Art Theatre held, a warrant for seizing allegedly obscene material may not issue on the mere conclusionary allegations of an officer, A fortiori, the officer may not make such a seizure with no warrant at all.' (Id. at p. 506, 93 S.Ct. at p. 2802.)

The case at bar is controlled by the dictates of Flack and Roaden. Defendants herein were engaged in a continuing enterprise involving the preparation and distribution of sexually explicit material. They were contacted at their permanent business office, the 'Hollywood House of Films,' by Deputy Sheriff Young, who posed as a buyer seeking to acquire pornographic materials for his business in Hawaii. After the initial contact an appointment was arranged between defendant Freeman and Young. At this meeting Freeman stated to the officer, 'I have some good action films, sucking and fucking,' and further informed him that the price of these creations was between $550 and $2,000 for one-hour, feature-length color sound films.

While Freeman and the officer were discussing film, defendant Horne collected various samples for the buyer's perusal. Freeman handed the officer an album of still photographs, apparently containing memorable moments from some of the more explicit productions. Horne arrived back at the office with a car containing boxes of film, one of which was placed on a reel-to-reel viewer. At this point Horne told Freeman that he though 'there was some cops downstairs--or hanging around downstairs.' Freeman then told him 'to take the stuff back' and Horne left the office with the films and the hand cart.

After Horne's withdrawal the film on the viewer was played for Deputy Young. The film was run at three times normal speed and without sound, but these limitations did not appear to detract from the officer's ability to ascertain its central theme. After viewing the film the deputy concluded it was obscene, arrested Freeman, and seized the film and the album of still photographs. At a prearranged signal five or six other deputies entered the office and conducted a thorough search of the premises. Apparently the theory of each officer was, in paraphrase of Justice Stewart's pithy expression, 'I know it when I seize it.' See 4 Loyola L.Rev. (1971) 9, 52--65.)

While these events were transpiring Horne was taking the remainder of the film to an automobile parked outside the building. He placed the boxes in the trunk and back seat of the car, then 'drove around in circles' for 10 to 15 minutes. At all times he was under surveillance by officers stationed outside Freeman's office. Horne then returned to the office and was himself arrested. The officers conducted a complete search of the car and seized the aforementioned film canisters from the trunk and back seat.

The evidence sought to be suppressed includes the film viewed by Deputy Young, the film seized from the car, and the album of still photographs. At no time was a warrant obtained for the seizure of any of these items.

The People first seek to avoid the strict warrant requirement of Flack and Roaden with the contention that 'No search warrant was required because of the defendant's admission that the material being pandered was obscene.' In view of Freeman's representations to Deputy Young, it is urged 'that whatever impartial judicial determination on the question of obscenity to which the defendant was entitled had been voluntarily waived by reason of his own conduct.' The support for this novel proposition is said to be the cases of People v. Burnstad (1973) 32 Cal.App.3d 560, 108 Cal.Rptr. 247, and People v. Golden (1971) 20 Cal.App.3d 211, 97 Cal.Rptr. 476.

Golden is clearly inapposite. There the issue was not the warrantless seizure of suspected obscene material but rather the legal sufficiency of the affidavit pursuant to which a warrant was issued by the intervening magistrate. The purported admission of the defendant during a clandestine transaction, coupled with other evidence of possession of obscene material with the intent to distribute, were held by a divided court to be sufficient to support the issuance of the warrant.

In Burnstad a warrant had also been obtained. There an undercover officer had viewed certain of the defendant's films and arranged a meeting in order to purchase them. Prior to the meeting a warrant was issued authorizing the search of two locations and the seizure of the films the officer had viewed. However, in executing the warrant the officer seized a number of films not named in the warrant. In upholding the validity of this latter seizure the court distinguished Flack on the ground that 'Here the defendant had himself placed the mark of contraband on the films. In all his dealings with Officer Dixon, defendant had pandered all of his films as 'hardcore' pornography.' (32 Cal.App.3d at p. 565, 108 Cal.Rptr. at p. 250.)

While a warrant was obtained in that case, to the extent that Burnstad can be said to stand for the proposition that the warrant requirement of Flack and Roaden is rendered unnecessary by a defendant's own pejorative characterization of the material it is hereby disapproved. Theatre marquees, billboards and newspaper advertisements all too often appeal to base instincts by making extravagant claims concerning the licentiousness depicted on movie screens, yet no serious claim could be made that mere suggestive or disparaging descriptions justify a warrantless seizure of the films. ⁵ Whatever reaction might be evoked by defendant's inelegant assessment of content in the instant case, it is nonetheless clear that presumptively protected First Amendment material cannot be transmuted into contraband merely by the crude puffing of a seller who emphasizes its purported salacious features.

Nor does Ginzburg v. United States (1966) 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, relied upon in Burnstad, compel a different conclusion. In Ginzburg the defendant went to extraordinary lengths to sell his publications on the basis of their prurient appeal, such as obtaining mailing permits from communities with sexually suggestive names and stressing in advertising circulars the erotic nature of the material. The Supreme Court held that in a close case evidence of commericial exploitation of erotica solely on the basis of its sensual appeal may be determinative: 'Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. . . . ( ) . . . (B)y animating sensual detail to give the publication a salacious cast, petitioners reinforced what is conceded by the Government to be an otherwise debatable conclusion.' (Id. pp. 470--471, 86 S.Ct. at p. 947.)

That a defendant's characterization of his material in the...