The opinion of the court was delivered by: PRATT
Defendants are charged in a two-count indictment with violations of 18 U.S.C. § 1462 and 22 D.C. Code § 2001(a)(1)(E) (Supp. II, 1969). The first statute makes it a crime knowingly to receive from a common carrier obscene material
shipped in interstate commerce. The second prohibits knowing possession of obscene matter with the intent to disseminate such matter.
Defendants have filed a motion to suppress alleging, inter alia, that an adversary judicial proceeding should have been held prior to the seizure of the material alleged to be obscene for a determination whether the motion pictures are obscene under the appropriate standards. In the alternative, the motions attack the sufficiency of the affidavit in support of the search warrant and the constitutionality of the regulation pursuant to which the inspection of the package was made.
For the reasons stated below, the motion to suppress is denied and the procedure by which the seizure was effected in this case is upheld.
The affidavit in support of the search warrant issued in this case recited that a package was delivered to United Air Lines in San Francisco, California, on May 20, 1969 by an individual identifying himself as Tom Moore. The United Air Lines supervisor, Robert Miller, caused the package to be opened because of "peculiar circumstances surrounding receipt of the shipment." These circumstances include that the package measured 4" x 10" x 13" and weighed seven pounds, that the individual delivering the package was extremely nervous, that the individual evaded questions as to the contents of the package but finally stated it contained "personal items" and that the return address was fictitious.
Upon opening the package, Mr. Miller observed thirty rolls of film which he concluded were hard core pornography after personal observation of them. The affidavit recites that "the films depict a man and a female engaged in sexual intercourse, and various other sexual activities by males and males and males and females." The package was then returned to the normal shipping route and the above information was relayed to FBI agents.
The package was shipped via United Air Lines, on May 21, 1969 and arrived at Dulles Airport later the same day. On May 22, 1969, the package was given to a delivery service for transmittal to the addressee. Delivery was made at 3:30 P.M. on May 22, 1969 to the Potomac News Company at 507 8th Street, S.E., Washington, D.C. After leaving said premises, the delivery driver was questioned by FBI agents who had observed him and he admitted making delivery of the above described package at said address.
With this information the agents, at 4:10 P.M. on May 22, 1969, requested and obtained a search warrant for the premises of 507 8th Street, S.E. from a United States Commissioner. FBI agents then went to the above premises. Soon after their arrival at 4:35 P.M., the package was retrieved from the ceiling of the defendants' office building by one of the employees at the direction of defendant Womack.
II. A PRIOR ADVERSARY HEARING WAS NOT REQUIRED.
Defendants argue that an adversary hearing should have been held prior to the seizure in this case for the purpose of determining whether the materials ultimately seized were obscene. Defendants rely on A Quantity of Books v. Kansas
and its progeny in support of their argument. E.g. Metzger v. Pearcy et al., 393 F.2d 202 (7th Cir. 1968); Sokolic v. Ryan, 304 F. Supp. 213 (S.D. Ga. 1969); City News Center, Inc. v. Carson, 310 F. Supp. 1018 (M.D. Fla. Feb. 25, 1970); Bongiovanni v. Hogan, 309 F. Supp. 1364 (S.D.N.Y. Feb. 10, 1970). The rationale underlying A Quantity of Books, supra, and cases decided in reliance thereon, is that a procedure which permits the seizure and impounding of books or other material, absent an adversary hearing on the issue of obscenity, is violative of the First Amendment in that such a procedure does not adequately safeguard against the suppression of non-obscene material.
The requirement of an adversary hearing prior to seizure must be examined in the light of the precise facts of the particular case. It cannot be applied rigidly and mechanically. The cases cited by defendants deal exclusively with situations where the allegedly obscene material was in the public domain at the time of seizure or where massive seizures have occurred. In such cases the public interest in viewing non-obscene materials requires that a hearing be held prior to seizure to ensure that the materials about to be seized or confiscated are, in fact, obscene. Additionally, a chilling effect on the exercise of First Amendment rights may result from such a seizure or from an arrest for publicly selling or displaying materials which conceivably are not obscene. An adversary hearing can be held in those cases where a film is shown at a theater or where books are for sale in stores since a request for a copy might be honored and certainly a purchase can be made. See Bethview Amusement Corp. v. Cahn, 416 F.2d 410, 412 (2d Cir. 1969). Likewise, where bulk shipments of materials are involved or where films are being publicly displayed, the location of the materials for a period of time is easily determined and there exists the likelihood of obtaining a copy of the material either by court order or with the consent of the owner. Metzger v. Pearcy et al., supra. Moreover, the issuance of an injunction against removal could be readily enforced. Cf. United States v. Brown, 274 F. Supp. 561 (S.D.N.Y. 1967).
In the case at bar, however, the existence of a public interest in viewing these materials is not readily apparent. The furtive manner of their shipment and their concealment at their destination lend credence to the argument that these films were never intended for public display or viewing. No contention has been made that these thirty films would immediately have been viewed by a large number of persons or offered to the public at large.
Obviously, at the time of seizure the materials, lodged in a ceiling, were not in the public domain. For the same reasons, any resulting adverse effect on dissemination of other First Amendment protected materials is nonexistent in this case. These defendants were not showing the films at a theater or even in "peep ...