People v. Superior Court

Opinion

Police officers of the City of Westminster seized vast quantities of motion picture films, still photos and records from real parties in interest (hereafter defendants) pursuant to two search warrants. In due course an information was filed charging defendants with conspiracy to prepare, publish, distribute and exhibit obscene matter in violation of Penal Code section 311.2, and with a misdemeanor count of possession of obscene material in violation of the section. A jury trial resulted in a “not guilty” verdict on both counts. Defendants thereupon moved for return of all seized materials, most of which remained in possession of the Westminster Police Department. The court granted the motion and ordered the district attorney and the Chief of Police of the City of Westminster to return all material seized under the two search warrants. Following entry of the order, the People forthwith filed a notice of appeal. Contempt proceedings were thereafter instituted against the district attorney, one of his deputies, and the chief of police for refusal to comply with the order.

Three matters stemming from the order to return are now before us: (1) A petition for a writ of prohibition to restrain the court below from threatened enforcement of the order through contempt proceedings; (2) petition for a writ of review to annul an order adjudging the chief of police in contempt for failure to return the seized materials;^[1] and (3) defendants’ motion to dismiss the People’s pending appeal from the order to return.

The following events led to these proceedings:

Westminster police officers obtained a search warrant from a municipal court judge for the seizure of 10 identified films from defendants. In the execution of the warrant, the officers observed huge quantities of other

films, still pictures and records. They thereupon obtained a second search warrant and seized some 20,000 films, thousands of still pictures, and records. Defendants made motions in the municipal court to quash the two search warrants. The motion to quash was denied as to the first warrant but a separate motion as to the second was granted insofar as the seizure of films was concerned. Following a preliminary hearing at which the films seized under the first warrant were introduced into evidence, the magistrate determined that there was probable cause to believe the films to be obscene and bound defendants over to the superior court.

Upon the filing of the information, de novo hearings were held on the validity of the seizures. The superior court ruled that seizures under both warrants were valid. Defendants unsuccessfully sought successive- writs from this court to review and set aside orders denying their motion to suppress and granting the People’s motion under Penal Code section 1538.5, subdivision (j).

At the trial, in addition to the films seized under the first search warrant, the prosecution introduced into evidence 12 of the films seized under the second search warrant.^[2] Immediately following the not guilty verdicts, defendants orally moved in open court for the return of all seized materials. The court forthwith ordered return of the films introduced into evidence but, with respect to the remainder, directed defendants to file an inventory of the items claimed to be in possession of the district attorney and chief of police together with a memorandum of authorities in support of the motion. The People were granted leave to file a responding memorandum. Following filing of the inventory and memoranda, the matter was submitted and the court made its order directing the district attorney and chief of police and their subordinates to return forthwith to defendants all material seized under the two search warrants. Upon entry of the order, the People filed a notice of appeal.

Defendants thereafter instituted contempt proceedings against the district attorney, one of his deputies and the chief of police for willful failure to comply with the return order. Following hearing on the order to show cause, the court dismissed the contempt proceedings against the district attorney and his deputy; the dismissal as to the district attorney was for lack of proof of service of the order to show cause and the dismissal as to the deputy was for lack of any evidence of contempt. The chief of police, however, was adjudged guilty of contempt but imposition of sentence was suspended for 60 days.

Upon the filing of the People’s petition herein for prohibition and review,

1. Jurisdiction to entertain motion for return.

The People urge that with respect to the seized materials which were not introduced into evidence, the only remedy available for their return was a proceeding in mandate or a civil action for their recovery. While independent civil remedies were available (see People v. Luros, 4 Cal.3d 84 , 88 [ 92 Cal.Rptr. 883 , 430 P.2d 633 ]; Aday v. Superior Court, 55 Cal.2d 789 , 799 [ 13 Cal.Rptr. 415 , 362 P.2d 47 ]; Franklin v. Municipal Court, 26 Cal.App.3d 884 , 897 [ 103 Cal.Rptr. 354 ]; Williams v. Justice Court, 230 Cal.App.2d 87 , 94 [ 40 Cal.Rptr. 724 ]; People v. Gershenhorn, 225 Cal.App.2d 122 , 126 [ 37 Cal.Rptr. 176 ]; Aday v. Municipal Court, 210 Cal.App.2d 229 , 249 [ 26 Cal.Rptr. 576 ] [mandate]; see People v. Gershenhorn, supra; Modern Loan Co. v. Police Court, 12 Cal.App. 582 , 587 [ 108 P. 56 ] [claim and delivery]), we cannot agree that they were exclusive.

The court derived its power to entertain the motion for return of the seized items from Penal Code section 1536 as well as from its inherent power “to control and prevent the abuse of its process.” (See Buker v. Superior Court, 25 Cal.App.3d 1085 , 1089 [ 102 Cal.Rptr. 494 ].) Section 1536 provides that property seized under a search warrant “must be retained by the officer in his custody, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the offense in respect to which the property or things taken is triable.”^[3]

The People contend that section 1536 could not have been the source of the superior court’s power to make the questioned order after the trial of the criminal action was concluded because (1) the offense in respect to which the property was taken was then no longer “triable” in the superior court within the meaning of the section and (2) summary proceedings for return by motion did not lie after the trial was concluded because the seized materials were then no longer in custodia legis.

It is true that in Buker v. Superior Court, supra, 25 Cal.App.3d 1085 , the property had been introduced into evidence at the preliminary hearing and had been transferred to the superior court when petitioner was bound over. But in Gershenhorn v. Superior Court, supra, 227 Cal.App.2d 361 , a summary proceeding by nonstatutory motion for return of property seized incident to petitioner’s arrest was held to be an appropriate remedy even as to property still in possession of the seizing officer and not introduced into evidence in the grand jury proceeding leading to petitioner’s indictment. The court rejected the identical contention now urged by the People that the owner should be relegated to an independent civil action, stating: “And the expense and complications of bonds and other procedures involved in claim and delivery seem an unnecessary apparatus to recover property which, as we shall show, is already in the hands of the court.”^[4] In holding that judicial control extended even, to property not yet offered or received in evidence, the court stated: “We deal with property seized by a public officer, acting under the color of his status as a law enforcement officer, and seized solely on the theory that it constitutes a part of the evidence on which judicial action against its owner or possessor will be taken. We regard property so- taken and so held as being as much held on behalf of the court in which the contemplated prosecution will be instituted as is property taken and held under a warrant. The seizing officer claims no right in or to the property, or in or to its possession, save and except as the court may find use for it. He must respond, as does any custodian, to the orders of the court for which he acted.” (227 Cal.App.2d at p. 366.)

The fact that both Buker v. Superior Court, supra, 25 Cal.App.3d 1085 , and Gershenhorn v. Superior Court, supra, 227 Cal.App.2d 361 , involved pretrial motions whereas the instant case involves a post-trial

We conclude that the court below had jurisdiction to entertain defendants’ motion for return of the seized materials.

2. Power to order release without determination of contraband character of films.

We turn to the People’s substantive attack upon the return order. It is urged the court lacked the power "to order release of the seized films because (1) the magistrate in Penal Code sections 1539-1540 proceedings found them to be obscene and (2) even assuming such determination had not been made by the magistrate, under A day v. Superior Court, supra, 55 Cal.2d 789 , it was improper to order their restoration to defendants without a judicial determination that they were not contraband.

Though not raised in the brief, at oral argument, the People urged that the magistrate who heard the motion to quash the second search warrant granted the motion but declined to order return of the seized films because he found them to be obscene. The record, however, reveals that the magistrate not only made no implied finding on obscenity, he expressly excluded such implication. In refusing to order return of the seized films after granting motion to quash, the magistrate stated: “You will have to make a motion to have them returned”^[5] and went on to explain the limited scope of his ruling in granting the motion to quash the second search warrant as

The question remains whether the court was empowered to release the films without making a determination that they were not contraband. The People contend that Aday v. Superior Court, supra, 55 Cal.2d 789 , requires such a determination before return of the property.

Aday v. Superior Court, supra, 55 Cal.2d 789 , involved a mass seizure of books pursuant to a search warrant. The court upheld the seizure as to books identified in the warrant but invalid as to those not identified. However, the court declined to order return of the illegally seized books, stating that if they were obscene they were contraband and the owner would not be entitled to their return. The court remanded the matter to the municipal court where a motion to traverse the search warrant was pending with directions to make a determination of the contraband character of the books. For the reasons which follow, we have concluded that the People’s reliance on Aday is misplaced.

Unlike Aday, in the present case a final judicial determination on the fact of obscenity occurred in the criminal action in respect to which the seized films were held for use as evidence. In an excellent summation of his reasons for granting defendants’ motion for return of the seized materials, Judge Corfman recalled that the only issue in dispute in the trial of the criminal action was whether the seized films were obscene and observed that it was only reasonable to presume that the 12 films the district attorney selected for jury viewing from the mass of films seized under the second search warrant were those which he felt depicted the most aggravated conduct.^[6] At the very least the films selected must have been those

Even accepting, arguendo, the People’s position that the character of the films which were not introduced into evidence was not determined by the verdicts of acquittal, the order to return was nevertheless not only proper but constitutionally compelled.

The state may, of course, regulate or suppress sale or distribution of obscene matter. (United States v. Reidel, 402 U.S. 351 , 354 [ 28 L.Ed.2d 813 , 816-817, 91 S.Ct. 1410 ]; Roth v. United States, 354 U.S. 476 , 485 [ 1 L.Ed.2d 1498 , 1507, 77 S.Ct. 1304 ]; People v. Luros, supra, 4 Cal.3d 84 , 93.) But “since obscenity is often separated from constitutionally protected expression by only a ‘dim and uncertain line’ (Bantam Books, Inc. v. Sullivan (1963) 372 U.S. 58 , 66 [ 9 L.Ed.2d 584 , 590, 83 S.Ct. 631 ]), purported obscenity maintains, until such time as it is judicially determined to be unprotected speech, the same ‘preferred position’ as does free speech generally (Murdock v. Pennsylvania (1943) 319 U.S. 105 , 115 [ 87 L.Ed. 1292 , 1300, 63 S.Ct. 870 , 146 A.L.R. 81 ]) and the ordinary rules of search and seizure are inapplicable to it.” (Flack v. Municipal Court, 66 Cal.2d 981 , 989 [ 59 Cal.Rptr. 872 , 429 P.2d 192 ].) Rules which have been developed for the seizure and retention of contraband such as narcotics, gambling paraphernalia, burglary tools and intoxicating liquor are not equally applicable to allegedly obscene materials, (Marcus v. Search Warrant, 367 U.S. 717 , 731 [ 6 L.Ed.2d 1127 , 1135-1136, 81 S.Ct. 1708 ]; Aday v. Municipal Court, supra, 210 Cal.App.2d 229 , 244; Cinema Classics, Ltd. v. Busch (February 22, 1972) 339 F. Supp. 43 , affd. sub nom. Busch v. Cinema Classics, Ltd., and Davis v. Cinema Classics, Ltd. (October 10, 1972) 409 U.S. 807 [ 34 L. Ed.2d 66 , 93 S.Ct. 105 ].) As the three-judge federal district court in Cinema Classics, supra,^[8] aptly stated: “True contraband of the types mentioned can be quickly and easily recognized by officers operating in the field. Even as to narcotics, relatively simple field tests can be made. No simple tests exist to determine obscenity. Allegedly obscene materials are things used for the communication of ideas and partake of First Amendment characteristics far more than they do the characteristics of traditional contraband. Because they are presumptively First Amendment materials and are not easily recognizable, the same breadth of official action concerning their seizure and retention cannot be tolerated as is permitted in the case of true contraband.” (339 F.Supp. at p. 49.)

While Freedman v. Maryland, supra, 380 U.S. 51 , involved a censorship statute whereas the instant case involves a criminal prosecution, the principles therein adumbrated for safeguarding First Amendment rights apply with equal force here. As our high court stated in Flack v. Municipal Court, supra, 66 Cal.2d 981 , 989, fn. 8: “It cannot be said that searches pursuant to criminal obscenity proceedings are any less onerous a prior restraint than those made in connection with civil in rem actions against the obscene matter itself. As observed by the court in Evergreen Review, Inc. v. Cahn (E.D.N.Y. 1964) 230 F.Supp. 498 , 504, ‘It would be illogical and inconsistent to suppose that prior restraints upon distribution of publications would be unconstitutionally tainted under a . . . civil proceeding, yet be free from such taint under a . . . conventional criminal proceeding.’ (See also Redrup v. New York (1967) 386 U.S. 767 , 770 [ 18 L.Ed.2d 515 , 518, 87 S.Ct. 1414 ].)” The establishment of probable cause that presumptively protected materials may offend a criminal statute may justify their official sequestration pending final judicial determination of obscenity in fact in the criminal action but the final determination on the merits may not be deferred for an unreasonable or indefinite period. Prompt trial on the merits is particularly urgent where, as in the instant case, there has been a mass seizure of presumptively protected material.^[9] Seizure and retention by the state in such cases clearly constitute prior restraint on the exercise of free speech (Marcus v. Search Warrant, supra, 367 U.S. 717 ; A Quantity of Books v. Kansas, supra, 378 U.S. 205 ) and official sequestration without prompt institution of proceedings leading to a final judicial determination on the merits within a reasonable time transgresses First Amendment rights.

In the present case almost a year elapsed between seizure and the order

Acceptance of the People’s position would mean that once probable cause had been established for the seizure of presumptively protected materials, the state may retain the materials indefinitely without instituting proceedings leading to a final judicial determination on the fact of obscenity. The People suggest that the remedy of a civil action for return or proceeding in mandamus in which the owner would have the burden of proving the materials not obscene and therefore not contraband would satisfy due process. While those remedies would satisfy due process when dealing with ordinary contraband such as narcotics, gambling paraphernalia, burglary tools, etc., they do not comport with due process where materials presumptively protected by the First Amendment are involved. The teaching of Freedman v. Maryland, supra, 380 U.S. 51 , is that the state must initiate proceedings leading to a final judicial determination on the question whether the materials are protected within a reasonable period compatible with sound judicial administration and that in such proceedings the burden of proving the materials to be unprotected “criminal speech” must be borne by the state. (Freedman v. Maryland, supra, 380 U.S. 51 , 58 [ 13 L.Ed.2d 649 , 654]; Speiser v. Randall, 357 U.S. 513 , 526 [ 2 L.Ed.2d. 1460 , 1473, 78 S.Ct. 1332 ].) The state’s position in the present case would deny those due process safeguards. Defendants were therefore entitled to have the seized materials returned to> them.^[10]

Writ of Review

The People seek annulment of the order adjudging the chief guilty of contempt on the ground the evidence failed to establish a willful violation of the order.^[11]

The People argue that the chiefs violation of the order was not willful because he relied on the advice of the district attorney that the appeal operated as a stay. The record reveals, however, that the trial judge rejected that argument noting that there was evidence the chief of police, when interviewed by the press, stated he would not comply with the order because in his opinion the seized material was “hard core pornography.”

In reviewing a contempt order “the responsibility of the reviewing court is merely to ascertain whether there was sufficient evidence before the trial court to sustain the judgment and order. The power to weigh the evidence rests with the trial court.” (In re Ciraolo, 70 Cal.2d 389 , 394 [ 74 Cal.Rptr. 865 , 450 P.2d 241 ].) The record discloses that the trial judge disbelieved the chief’s testimony that he acted in reliance upon the advice of the district attorney respecting the effect of the appeal. Credibility of a witness is, of course, a matter for the trier of fact. A review of the record in the instant case reveals sufficient evidence to support the order finding the chief in contempt.^[12]