State v. Eros Cinema, Inc.

• Decision Date: 29 June 1972
• Docket Number: No. 52302,52302
• Citation: 262 La. 706,264 So.2d 615
• Parties: STATE of Louisiana v. EROS CINEMA, INC.
• Court: Louisiana Supreme Court

Page 615

264 So.2d 615

262 La. 706

STATE of Louisiana v. EROS CINEMA, INC.

No. 52302.

Supreme Court of Louisiana.

June 29, 1972.

William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Philip Montelepre, Asst. Dist. Attys., for plaintiff-relator.

Michael Silvers, New Orleans, for defendant-respondent.

BARHAM, Justice.

We granted a writ on the State's application under bills of exceptions to the trial court's sustaining of the defendant's motions to suppress in these three cases. Although there are three prosecutions pending in the Criminal District Court for the Parish of Orleans, they are here consolidated, and the issues presented are resolved in the one opinion.

These three prosecutions stem from the seizure of allegedly obscene motion pictures under a search warrant of April 23, 1971 ('Zodiaction' and 'Shorts'), another search warrant of the same date ('Studs Galore'), and a search warrant of April 27, 1971 ('Four Women in Trouble' and two unnamed short films). The same procedure for obtaining the search warrant was followed in each instance: A police officer viewed, on a particular date, the film later seized at LeBanque Cinema, Cinema One and Cinema Two, which was owned and operated by Eros Cinema, Inc. The officer, after viewing the film, made an application (affidavit) for search warrant, describing the place where the film was being shown and his activities in connection with the viewing of the film, and giving the name of the motion picture and numerous details of what was pictorially depicted. The affidavit is fully descriptive, reciting in detail the various sexual activities performed in the film. Each affidavit was taken before a judge of the Criminal District Court for the Parish of Orleans, who signed the arrant ordering the seizure of the 'obscene films' described in the affidavit. Each return shows an inventory which is responsive to, and does not go beyond, the affidavit and the search warrant. Thereafter Eros Cinema Inc., was charged in three separate bills of information with having committed the crime of obscenity 'by the intentional exhibition of lewd, lascivious, filthy and sexually indecent motion picture film'. See R.S. 14:106(A)(2).

The defendant filed a motion to suppress in each case, alleging that the seizure of the films was unconstitutional under the First Fourth, and Fourteenth Amendments for numerous reasons. The trial court with reasons for judgment sustained the motion to suppress in each case. The court concluded that a prior adversary hearing to determine obscenity was required before a seizure of the film could be made, and that the search warrants and the seizures thereunder violated the First and Fourteenth Amendments' guarantee of freedom of speech.

Under the application made to this court, the briefs filed in support and in opposition, and the arguments made before this court, we are presented with a single legal issue, res nova for us: Is a prior adversary hearing required under the First, Fourth, and Fourteenth Amendments to the United States Constitution before a search warrant can issue for the seizure of a particular motion picture film alleged to be obscene? ¹

Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), reaffirmed that the guarantee of freedom of speech and of the press of the First Amendment (made applicable to the states through the Fourteenth Amendment) gives full protection to all ideas having even the slightest social significance 'unless excludable because they encroach upon the limited area of more important interests'. The court held squarely, however, that obscenity is utterly without redeeming social importance and is therefore 'not within the area of constitutionally protected speech or press'.

In Kingsley Books v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957), handed down on the same day as Roth, the Supreme Court, with Warren, C.J., and Douglas, Black, and Brennan, JJ., dissenting, upheld the validity of a New York statute which allowed the ex parte enjoining of display and sale of obscene literature. The basis of the holding was that the statute allowed 'a trial of the issues within one day after joinder of issue and a decision * * * within two days of the conclusion of the trial', and that the seizure was therefore not violative of due process in screening for obscenity as an exception to the First Amendment right of freedom of expression.

In Marcus v. Property Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), the court without dissent declared unconstitutional a Missouri procedure authorizing the search for and seizure of allegedly obscene publications preliminary to their destruction if found after a hearing to be obscene. Under warrants issued pursuant to the Missouri statute, 11,000 copies of 280 publications were seized at six different places. The court posed the question of whether the Missouri use of search and seizure under the circumstances of that case involved 'abuses inimical to protected expression'. The court said:

'* * * Putting to one side the fact that no opportunity was afforded the appellants to elicit and contest the reasons for the officer's belief, or otherwise to argue against the propriety of the seizure to the issuing judge, still the warrants issued on the strength of the Conclusory assertions of a single police officer, without any scrutiny by the judge of any materials considered by the complainant to be obscene. * * *' (Emphasis here and elsewhere has been supplied.) The court found the warrants deficient also in giving total discretion to the executing officers who made an on-the-scene determination of what constituted obscene publications. It finally said: 'Mass seizure in the fashion of this case was thus effected without any safeguards to protect legitimate expression.' It particularly distinguished Kingsley Books, supra. The decision does not turn upon the lack of a hearing before execution of the warrants, for that question was pretermitted.

In A Guantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), the court held that the seizure of 1715 books constituting all of the copies of 31 novels in a warrant for the seizure of all 'Nightstand Books' as obscene was unconstitutional where there was no adversary determination of the books' obscenity before the mass seizure. This majority decision was subscribed to by only four members of the court. Justices Black and Douglas concurred, reiterating their views in Roth, supra, never reaching the procedural aspects of the case, and simply concluding that obscenity in speech or publication is protected under the First Amendment. Justice Stewart concurred on the ground that the books were not pornographic. Justices Harlan and Clark dissented.

Again specifically discoursing on the teaching of Kingsley Books v. Brown, supra, and apparently reaffirming its holding, the majority in A Quantity of Books said: 'It is our view that since the warrant here authorized the sheriff to seize All copies of the specified titles, and since P-K was not afforded a hearing on the question of the obscenity even of the seven novels before the warrant issued, the procedure was likewise constitutionally deficient.' The court further stated: '* * * A seizure of All copies of the named titles is indeed more repressive than an injunction preventing further sale of the books.' Finally the court said: 'Nor is the order under review saved because, After All 1,715 copies were seized and removed from circulation, P-K News Service was afforded a full hearing on the question of the obscenity of the novels.'

This opinion of four members of the Supreme Court, two of whom no longer sit, is authority only for the proposition that Total suppression of any expression of speech or press as obscenity cannot be had except after an adversary hearing. The repeated mention of the mass seizure of All copies of all titles clearly points to the alternative the majority felt was available in the control of obscenity--that is, the seizure of one copy of each title for evidence to determine whether all copies may be suppressed as obscene.

It should be noted that in every case we have discussed the affidavit, the search, and the seizure were not made under general provisions for search and seizure for evidence in cases involving probable cause to believe that the crime of obscenity as defined by a special criminal statute has been committed. All the seizures considered were made under special provisions for suppressing, destroying, or enjoining obscenity. The warrant and the seizure were both preliminary steps in these cases to a total, final suppression of the things seized. In each case Everything thought to be obscene was suppressed, was seized, or was enjoined ex parte.

Since A Quantity of Books in 1964, the Supreme Court has not spoken on whether an adversary hearing is required before the seizure of allegedly obscene materials. However, in Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), the court may have spoken strongly on the precise issue before us now by its very silence. In that case the court was concerned with the admissibility in evidence of motion pictures seized under a warrant issued by a justice of the peace 'on the basis of an affidavit of a police officer which stated only the titles of the motion pictures and that The officer had determined from personal...