People v. De Renzy

This case concerns the legality of the seizure of two reels of allegedly obscene motion picture film, pursuant to the instructions of a search warrant. The pictorial content of each reel differed from the other. At the time of the seizure, their owner, defendant and appellant de Renzy, was arrested on a warrant and charged with possession of the film “with intent to . . . exhibit” the same. (Pen. Code, § 311.2.) A special proceeding taken under Penal Code section 1538.5 in the municipal court for return of the film resulted unfavorably to de Renzy who appealed the decision to the superior court. That court affirmed the order of the lower court without opinion, but on motion of de Denzy it certified, under rule 63, California Rules of Court, that a transfer of the case “to the Court of Appeal appears necessary to secure uniformity of decision and to settle an important question of law, namely, whether the decision of the United States 7th Circuit Court of Appeal in Metzger v. Pearcy (1968) 393 F.2d 202 states the law applicable in California. ’ ’

Nor is any issue here raised as to whether the subject film was in fact obscene. The only question presented is whether, even under an otherwise valid search warrant, such matter may be seized without a prior determination of obscenity at an adversary judicial proceeding.

de Renzy construes Metzger v. Pearcy, supra, 393 F.2d 202 , to assert as an absolute rule that there may be no seizure of matter, although established by oath or affirmation to the satisfaction of a magistrate as probably obscene, without a prior adversary judicial proceeding. He urges that we follow this interpretation of Metzger. Of course, although such a decision of a United States Court of Appeals is entitled to great respect, we are not bound thereby, even on questions relating to the federal Constitution. (People v. Willard, 238 Cal.App.2d 292 , 305 [ 47 Cal.Rptr. 734 ].)

We first discuss some of the fundamental considerations relating to the question presented to us.

Obscenity, in whatever form, is wholly unprotected by the free speech guaranty of the First Amendment. (See Roth v. United States, 354 U.S. 476 , 484-485 [ 1 L.Ed.2d 1498 , 1506-1507, 77 S.Ct. 1304 ].) The several states are free to regulate and suppress such matter by virtue of their constitutionally reserved police power. (Flack v. Municipal Court, supra, 66 Cal.2d 981 , 986.) And courts will not hesitate to enforce any valid law against obscenity. (See Jacobellis v. Ohio, 378 U.S. 184 , 202 [ 12 L.Ed.2d 793 , 806, 84 S.Ct. 1676 ].) Nevertheless, we must recognize that a " dim and uncertain line ’ ’ often separates obscenity from constitutionally pro

If the rule argued for by de Renzy be the law, then California’s law enforcement authorities, under circumstances as here exist, are faced with a curious dilemma. They are permitted by the state and federal Constitutions, and directed by statute, to enforce the state’s obscenity laws. On the other hand they may not seize alleged obscene material, even under a search warrant, without a prior adversary proceeding. Any court process designed to compel production of the questioned material would obviously impinge upon the possessor’s Fifth Amendment rights. (See Boyd v. United States, 116 U.S. 616 , 634-635 [ 29 L.Ed. 746 , 752-753, 65 S.Ct. 524 ].) Thus, although seizure of obscene material is conditioned upon a prior adversary hearing, the state would be without power to produce the evidence essential to that hearing. This result is unreasonable and should be avoided. We recognize that there may be circumstances where, by fortuity, obscene matter may be produced by the state without need of search or seizure or court process, e.g., books offered for public sale. In such cases any seizure without prior adversary proceedings obviously would be constitutionally impermissible. But we do not believe that enforcement of a vital state criminal statute must necessarily rest upon some chance windfall of evidence.

Metzger v. Pearcy, supra, 393 F.2d 202 , is, as we have seen, the case relied upon by de Renzy and the basis of the superior court’s certification of his appeal to this court.

A study of Books, supra, 378 U.S. 205 , relied upon in Metzger reveals the following. The Attorney General of Kansas obtained, on an ex parte application, a court order authorizing the seizure of all copies of 57 named books to be found at a certain place of business. More than 1,700 books were thereupon seized and impounded. Four of the nine justices of the court expressed the view (p. 210 [12 L.Ed.2d at p. 812]), “that since the warrant here authorized the sheriff to seize all copies of the specified titles, and since [the owner] was not afforded a hearing on the question of the obscenity even of the seven novels [copies of which had previously been submitted to the lower court] before the warrant issued, the procedure was likewise constitutionally deficient.” (Italics added.) The justices emphasized that all of the named books found were seized, saying: “A seizure of all copies of the named titles is indeed more repressive than an injunction preventing further sale of the books. ’ ’ (Italics added.)

The four justices of Books relied heavily on Marcus v. Search Warrant (1961) 367 U.S. 717 [ 6 L.Ed.2d 1127 , 81 S.Ct. 1708 ], In that ease a search warrant directed any peace officer to seize “obscene material” found on certain designated premises. Acting on the warrant, officers seized 11,000 copies of 280 publications. The Marcus court found the seizure order to be violative of the First Amendment. In doing so the court stated (p. 738 [6 L.Ed.2d at p. 1139]) : “Mass seizure in the fashion of this case was thus effected without any safeguards to protect legitimate expression.” (Italics added.) Here again great stress was placed upon the fact that all copies of each publication were taken under the warrant. We find this language (pp. 736-737 [6 L.Ed.2d at pp. 1138-1139]) : “. . . there is no doubt that an effective restraint—

Nothing is found in Metzger, Boohs, or Marcus that condemns a narrow, discriminating seizure, under a search warrant issued upon a reasonable finding of probable cause therefor by a magistrate, of so much obscene material as is reasonably necessary for a later adversary proceeding. Indeed, even in Metzger we find recognition of the need, and the right, of a state to obtain such amount of obscene material as is necessary for the adversary hearing. The appellate court pointed out (without discussion of the obvious Fifth Amendment problem involved) that after the trial court had ordered return of the improperly seized film, it nevertheless directed Metzger, upon the prosecutor’s request, to surrender one print of the film “for his use in the trials of . . . the criminal cases involving such film now pending in the Municipal Court of Marion County, Indiana.” (393 F.2d at p. 204.)

We hold that state law enforcement officers, acting under authority of a search warrant, may seize at least one copy of an alleged obscene book, film, or other material when necessary for use as evidence in a later adversary proceeding, without doing violence to the First or Fourth Amendment.

We believe this holding to be a reasonable accommodation of the constitutional right of California to enforce a constitutionally valid criminal statute to the demands of the federal

Our remaining task is to apply the rule we have announced to the subject of this appeal. As we have pointed out, under authority of a search warrant, the officers seized two reels of film, each different from the other and each containing allegedly obscene matter. They took no more, and no less, than would be necessary to establish obscenity at a later adversary proceeding. Their action fell far short of the unnecessary, indiscriminate mass seizures denounced in Metzger, Books, and Marcus. The order of the municipal court denying de Renzy’s motion for return of his film was therefore without error.

de Renzy’s argument in the superior court, not emphasized here, that the police nevertheless conducted a mass seizure since they took both nonobseene and obscene material on the same reels, is obviously without merit. Any police attempt, at the place of seizure, to edit and cut hundreds, perhaps thousands, of feet of film without expertise or proper equipment, would be a far greater threat to constitutional and property rights, than was the conduct complained of here.

Two additional considerations generally relevant to the problem before us but not here at issue, should not go altogether unnoticed. First: California law affords a prompt and speedy remedy, including an adversary hearing, for the return of property improperly taken under a search warrant. See Penal Code sections 1538.5, 1539, 1540, the purpose of which “is to provide one whose property is seized with a speedy remedy in a readily accessible court.” (Aday v. Superior Court, 55 Cal.2d 789 , 800 [ 13 Cal.Rptr. 415 , 362 P.2d 47 ] ; Holden v. Arnebergh, 265 Cal.App.2d 87 , 90 [ 71 Cal.Rptr. 401 ].) Secondly: de Renzy has mentioned, without particularly advocating, the sometimes suggestion that in the absence of an adversary hearing, a magistrate should at least view allegedly obscene film before authorizing a search warrant. No way has yet been pointed out how this is to be accomplished. Must the magistrate at the beck of a

The order of the municipal court denying the motion of de Renzy for return of the subject moving picture film is affirmed.

Molinari, P. J., and Sims, J., concurred.

A petition for a rehearing was denied August 12, 1969, and appellant’s petition for a hearing by the Supreme Court was denied September 24, 1969.