State v. Rabe

• Decision Date: 06 April 1971
• Docket Number: No. 41365,41365
• Citation: 79 Wn.2d 254,484 P.2d 917
• Parties: STATE of Washington, Respondent, v. William RABE, Appellant.
• Court: Washington Supreme Court

Page 254

79 Wn.2d 254

484 P.2d 917

STATE of Washington, Respondent, v. William RABE, Appellant.

No. 41365.

Supreme Court of Washington, En Banc.

April 6, 1971.

Critchlow, Williams, Ryals & Schuster, Rembert Ryals, Richland, for appellant.

Herbert Davis, Pros. Atty., Curtis Ludwig, Deputy Pros. Atty., Prosser, for respondent.

McGOVERN, Associate Justice.

This is an appeal from a judgment entered upon the defendant's conviction of the crime of exhibiting an obscene motion picture film in violation of RCW 9.68.010.

Defendant managed an outdoor drive-in theater in the City of Richland. At the time of his arrest, he was exhibiting the motion picture 'Carmen Baby' and had imposed no age restriction upon the paying audience. The picture screen of the outdoor theater was situated in such a way that it faced 12 to 15 adjoining family residences and a portion of a nearby major highway. Pictures upon the screen were thus visible to residents of those homes and their guests, to passing motorists upon the highway, and to those persons who would look at the screen from just outside the chain-link retaining fence enclosing the theater grounds.

August 28, 1968, a Richland police officer stood outside the theater fence and observed a portion of the film being shown. The following night, from the same vantage point, that officer and the Richland city attorney viewed almost the entire film. On both occasions, teenage and younger children were observed by the officer to be watching the motion picture from various points outside the theater fence.

Thereafter, the complaining officer appeared before a Richland justice of the peace and testified that he had observed the motion picture. He described some of the more objectionable scenes of the movie and informed the magistrate that teenage and pre-teenage children were viewing the picture from the periphery of the theater enclosure. Upon formal written complaint, a warrant for the arrest of the defendant was then issued and executed. As an incident to the arrest, and for evidentiary purposes, two reels of film of 'Carmen Baby' were seized by the arresting officers.

October 3, 1968, defendant was convicted in the Richland District Justice Court of 'wrongfully and unlawfully caus(ing) to be exhibited an obscene, indecent and immoral show' contrary to RCW 9.68.010. ¹ He thereupon appealed to the Benton County Superior Court where following a trial de novo, he was again found guilty of the charge. The superior court did not conclude that the picture was obscene in its entirety, but rather that 'Individual portions or scenes of the movie * * * are obscene and to passing motorists or persons and residents outside the theatre those individual scenes become a movie by themselves.' It therefore concluded that the defendant was guilty of exhibiting an obscene movie and entered judgment accordingly.

On this appeal, defendant first argues that the seizure of the motion picture film for evidentiary purposes without a prior Adversary hearing on the question of its obscenity constituted a prior restraint on his First Amendment right to freedom of speech. He contends that the rule announced in Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968), is applicable here and that it requires a reversal of his conviction for the reason that the improperly seized film should not have been admitted in evidence against him. In Metzger, the court said, at page 204:

The lesson of Books is that law enforcement officers cannot seize allegedly obscene publications without a prior adversary proceeding on the issue of obscenity. Such a seizure violates the First Amendment to the Constitution of the United States, and is a prior restraint condemned by the Supreme Court. In light of Burstyn, supra, Kingsley Pictures, supra and Jacobellis, supra these rules apply to motion pictures as well. Allegedly obscene publications or movies are not to be treated the same way as narcotics, gambling paraphernalia and other contraband.

Although numerous federal district and circuit courts have recently adopted the viewpoint that a prior adversary hearing must be afforded before an allegedly obscene motion picture may be constitutionally impounded (Metzger v. Pearcy, Supra; Astro Cinema Corp., Inc. v. Mackell, 422 F.2d 293 (2d Cir. 1970); Demich, Inc. v. Ferdon, 426 F.2d 643 (9th Cir. 1970); Cambist Films, Inc. v. Duggan, 420 F.2d 687 (3d Cir. 1969); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969); Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2d Cir. 1969); Bongiovanni v. Hogan, 309 F.Supp. 1364 (S.D.N.Y.1970); Carroll v. Orlando, 311 F.Supp. 967 (M.D.Fla.1970); Natali v. Municipal Court of San Francisco, 309 F.Supp. 192 (N.D.Cal.1969) and cases cited therein), we, unlike those courts, are not persuaded that our nation's highest court requires an Adversary hearing in every case before a film may be seized as evidence of an obscenity law violation.

The three decisions of the United States Supreme Court which consider in particular the question of whether a prior adversary hearing is constitutionally required are Marcus v. Search Warrant of Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127, (1961), A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809, (1964) and Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968).

In Marcus, the court found improper the seizure of approximately 11,000 copies of 280 different publications considered by the police to be obscene items. The officers were acting under a general warrant authorizing the confiscation of all 'obscene' materials upon the defendant's premises. Mr. Justice Brennan merely noted the absence of a prior adversary hearing on the question of the obscenity of the items to be seized. Speaking for the majority, he considered in detail, however, the error of the magistrate who granted the police a search warrant without the aid of procedures 'designed to focus searchingly on the question of obscenity.' No publication had been submitted to the magistrate before he issued the warrant. The warrant constituted an unlimited authority to seize any publications which the officers in their discretion considered to be obscene. Although the court suppressed the seized material, it nevertheless distinguished that extensive and indiscriminate suppression of challenged publications from the temporary restraints upon selected publications which it had approved of in Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469, (1957).

Then, in A Quantity of Books, the police made another mass seizure, confiscating 1,715 copies of 31 novels found on the defendant's premises. An adversary hearing had not been held prior to the issuance of the warrant which authorized the seizure, but the judge who issued the warrant made a 45-minute ex parte examination of the materials to be seized, and the titles of the novels involved had been listed in the information filed by the prosecuting attorney. That procedure was held to violate the constitutional restrictions against abridgment of freedom of speech and press 'since the warrant here authorized the sheriff to seize all copies of the specified titles, and since (the defendant) was not afforded a hearing on the question of the obscenity * * * before the warrant issued'.

We disagree with the 7th Circuit Metzger decision and its progeny that Marcus and A Quantity of Books and Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098, (1952), Kingsley Int'l 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, 12 L.Ed.2d 793, 84 S.Ct. 1676 (1964), necessarily require a prior Adversary hearing on the issue of obscenity before a Motion picture film can be confiscated as evidence. In fact, Burstyn, Kingsley Pictures, and Jacobellis did not consider the specific question of a prior adversary hearing. In both Marcus and A Quantity of Books the statute being enforced called for civil proceedings directly against the materials and for their eventual destruction. In both instances, the police impounded all of the allegedly obscene publications they found on the premises. Most crucially, the great amount and variety of materials seized without sufficient judicial guidance created a substantial risk that nonobscene publications would also be suppressed. Certainly the scope and consequences of those seizures warranted the imposition of additional procedural safeguards. But the necessity for a prior adversary hearing is substantially less when, as here, the seizure is limited to a single item, the detention is temporary, and the action is initiated only after a cautious judicial scrutiny of the sensitive issues involved.

The single pronouncement of the United States Supreme Court concerning the seizure of a motion picture film as evidence for an obscenity prosecution supports our interpretation of Marcus and A Quantity of Books. In Lee Art Theatre, the Supreme Court, on the authority of Marcus, reversed the conviction of the operator of a motion picture theater for possessing and exhibiting obscene and lewd films. The per curiam opinion noted, however, that the warrant had been issued solely on the basis of conclusory statements in the affidavit of a police officer and that the issuing magistrate had not inquired into the factual grounds for the officer's assertions. Because that process obviously failed to satisfy Marcus's demand for a procedure 'designed to focus searchingly on the question of obscenity' the confiscation of the film was improper, and its introduction into evidence against the defendant necessitated a reversal of his conviction.

Significantly, the court did not suggest that the prior adversary hearing rule postulated in A Quantity of Books was applicable to the seizure of a motion picture film, even though it was obvious that the warrant was issued only after an ex...