State ex rel. Drost v. Newton Superior Court

• Decision Date: 03 March 1981
• Docket Number: No. 1180S427,1180S427
• Citation: 416 N.E.2d 1247,275 Ind. 297
• Parties: STATE of Indiana ex rel. Richard DROST and Naked City, Inc., Relators, v. NEWTON SUPERIOR COURT and The Honorable Dennis Kramer, as Judge of said Court, Respondents.
• Court: Indiana Supreme Court

Page 1247

416 N.E.2d 1247

275 Ind. 297

STATE of Indiana ex rel. Richard DROST and Naked City, Inc., Relators, v. NEWTON SUPERIOR COURT and The Honorable Dennis Kramer, as Judge of said Court, Respondents.

No. 1180S427.

Supreme Court of Indiana.

March 3, 1981.

Richard Kammen, McClure, McClure & Kammen, and Franklin I. Miroff, Ancel, Friedlander, Miroff and Ancel, Indianapolis, for relators.

Linley E. Pearson, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., R. Steven Ryan, Pros. Atty., Newton County, Kentland, for respondents.

PIVARNIK, Justice.

Relators, Richard Drost and Naked City, Incorporated, have petitioned this Court to issue a writ of mandate against the Newton Superior Court and the Honorable Dennis Kramer, as judge of that court. Essentially, relators challenge the adequacy of respondent Judge Kramer's compliance with statutory procedures relating to the seizure and preliminary judicial review of allegedly obscene materials. After the oral argument on this matter on November 24, 1980, this Court unanimously denied relator's request for a writ of mandate. This opinion is in furtherance of that decision.

On August 12, 1980, respondent Judge Kramer issued a search warrant authorizing police officers to search for and seize

"video tapes, films and photographs exhibiting any obscene performance and any photographs, films or video tapes presenting or exhibiting any obscene performance depicting or describing sexual conduct involving any person who is under sixteen (16) years of age; and, any video tape machines, and projection systems, screens, projectors, used to display, manage, produce, sponsor or exhibit such obscene performance."

The warrant recited that the search could cover "the lobby area and the bedroom known to be occupied by Richard Drost in the Round Gold Building located ... at Naked City in Roselawn, Indiana." Pursuant to this warrant, Indiana State Police officers seized over one hundred items from the described premises at Naked City. Most of these items were films or video tapes of an allegedly obscene nature.

The search for and seizure of these materials were made pursuant to Ind.Code § 35-30-10.1-1 et seq. (Burns 1979 Repl.). Section 35-30-10.1-5 states:

"Where the subject matter is offered for distribution to the public as stock-in-trade of a lawful business or activity, or, as in the case of films, is exhibited at a commercial theater showing regularly scheduled performances to the general public, no person shall be arrested for a violation of any of the provisions of this chapter unless the arresting officer shall have obtained an arrest warrant, and no property shall be seized as evidence unless a search warrant shall have first been obtained pursuant to the provisions of this title; Provided, however, that the quantity of materials seized shall encompass no more than is reasonable and necessary for the purpose of obtaining evidence."

In addition, § 35-30-10.1-6 states:

"At any time after seizure, or the obtaining of evidence by purchase, and prior to trial, the state, defendant, owner, or other party in interest of any matter seized or purchased, may apply for and obtain a prompt adversary hearing for the purpose of obtaining a preliminary determination of probable obscenity. If evidence has been obtained by purchase, the court shall direct the clerk of the court to issue notice to the defendant informing him or her of the availability of a prompt adversary hearing prior to the issuance of an arrest warrant. If the court determines at said hearing that there is probable cause to believe that the matter is obscene, the matter shall be held as evidence, and an arrest warrant may be issued for the arrest of the defendant. Provided, further, if the defendant, owner or other party in interest of any matter seized or purchased shall not apply for a prompt adversary hearing within five (5) days after the seizure occurs or within seven (7) days after notice is issued by the clerk, an arrest warrant may be issued for the arrest of the defendant. In the case of films or motion pictures, at any time after seizure and prior to trial or any adversary hearing for the purpose of obtaining a preliminary determination of probable obscenity, the defendant or owner of any matter seized may apply for and, upon a showing that other copies of the film or motion picture are not available to be exhibited, the court shall order that the applicant be permitted to copy the film or motion pictures, at his own expense, so that showing can be continued pending a judicial determination of probable obscenity in an adversary hearing."

Thus, under these statutes, if materials are seized pursuant to a search warrant, the defendant, owner or other party in interest is entitled to a prompt adversary hearing conducted for the purpose of obtaining a preliminary determination of probable obscenity. See generally State ex rel. J. N. S., Inc. v. Marion Municipal Court, (1979) Ind., 396 N.E.2d 361.

The record before us here reveals the following sequence of events. On August 15, 1980, three days after the search warrant was executed, relators petitioned for a prompt adversary hearing pursuant to § 35-30-10.1-6. The respondent court began these adversary hearings on August 19; however, the court did not complete its review on that day, and set the matter for continued hearing the next day. However, relators then requested a continuance. The court granted this request and reset the hearings for August 27 and August 28. Further hearings were held on those days, and the court then continued the matter to September 11 and September 12.

At some point before the resumption of the scheduled hearings, relators learned that Judge Kramer was not planning to be present at those hearings, but instead was planning to appoint a judge pro tempore to conduct the hearings in his absence. Relators, joined by the prosecutor, objected to this contemplated action; as a result, at relators' request, the hearings were continued and were rescheduled for October 28, 29 and 30. On September 15, relators filed an "Application for Return of Property and Renewed Request for Prompt Hearing." This pleading objected to the October 28-30 hearing dates and requested that respondent Judge Kramer resume the probable obscenity hearings immediately and continue to hold the hearings until the review of the evidence was completed. In response to this petition, Judge Kramer's record entry states that he had a schedule conflict from September 22 to October 10, and that he had rescheduled the hearings for the earliest possible resumption.

On October 15, respondent Judge Kramer entered an order confirming the October 28 and October 29 hearing dates, but continuing the October 30 hearing date because "the court has other matters that have to be heard on October 30, 1980." One week later, on October 22, the State requested a continuance of the October 29 hearing date due to the unavailability of one of its witnesses. The court granted this motion. The trial court's record further reflects that the probable obscenity hearings were resumed on October 28. At that hearing, relators renewed their request for "a prompt hearing" and the return of all confiscated items. Judge Kramer denied this motion and, at the close of that day's hearing, scheduled further hearings for November 26, December 2, December 3, and December 11. Thereafter, relators filed the petition for a writ of mandamus with this Court.

Relators argue that the statutory procedure has not been adequately followed by Judge Kramer, and that his method of disposing of this matter effectively denies them their First Amendment rights. Relators correctly assert that they are entitled to a prompt adversary hearing for the purpose of determining the probable obscenity of the materials seized pursuant to the warrant. They contend that, to adequately insure protection of their First Amendment...