The defendant was operating Tommy's Bookstore located at 1812 Adams Mill Road, N.W., in the District of Columbia. On October 10, 1969, Officer Joseph J. Rivera, a member of the Metropolitan Police Department assigned to the Morals Division, working undercover, entered Tommy's Bookstore, and, feigning to speak only Spanish, made known to the defendant his desire to purchase some photographs similar to two that Officer Rivera showed to the defendant which depicted nude males and females engaged in sexual acts. The defendant instructed Officer Rivera to wait until some of the people in the bookstore left. Thereupon the defendant produced from under the counter two packets of six photos each (4 inches by 5 inches) which he sold to Officer Rivera for Three Dollars ($3.00) per packet. These photographs depicted nude males and females engaged in sexual intercourse, fellatio, cunnilingus, and masturbation. The genital organs of all participants were exposed.
Four days later, on the afternoon of October 14, 1969, Officer Rivera returned to Tommy's Bookstore and through an interpreter asked the defendant if he could purchase films similar to the photos previously purchased. The defendant then sold Officer Rivera a reel of film from under the counter for $20.00. At that time the defendant wrote down the prices of films on a brown paper bag along with the word "police." The film was a black and white silent movie which showed three women and a man engaging in repeated acts of sexual intercourse, fellatio, cunnilingus and masturbation.
Subsequently, an affidavit relating the above happenings and the contents of the film and the photos were presented by the Metropolitan Police Department to a U.S. Magistrate who, thereupon, issued a search warrant for the premises of 1812 Adams Mill Road, N.W.
Officer Rivera next returned to Tommy's Bookstore on October 15, 1969, and asked the defendant about purchasing five films similar to the one already purchased. The defendant had only three under the counter, so he locked the bookstore and went with Officer Rivera to his (defendant's) car. When they arrived at his car, the defendant opened the trunk and reached into a large bag containing numerous films, photos and pamphlets, selected two additional films and handed over the five reels to Officer Rivera. At that point, Officer William Hampton of the Morals Division of the Metropolitan Police Department came on the scene and arrested the defendant and seized the materials in the trunk of the car.
The Court will first consider defendant's argument that he was denied a necessary prior adversary hearing. The defendant relies mainly on Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1965)
(hereinafter "Books"). Upon consideration of the facts presented which reflected seizure of a large number of books, the Court held (citing Marcus v. Search Warrants of Property at 104 East Tenth St., Kansas City, Mo., 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961); and Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S. Ct. 1325, 1 L. Ed. 2d 1469 (1957)) * * * "if seizure of books precedes an adversary determination of their obscenity, there is danger of abridgment of the right of the public in a free society to unobstructed circulation of non-obscene books." The requirement of an adversary hearing is, therefore, based on a threat of suppression or a chilling effect on distribution of non-obscene materials which are protected free speech under the First Amendment. There is no doubt that movies in addition to books are afforded First Amendment protection.
There is division among the jurisdictions, however, as to the need for a prior adversary hearing in a situation such as the present. ( United States v. Alexander, 428 F.2d 1169 (8th Cir. May 22, 1970); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969), cert. denied 396 U.S. 985, 90 S. Ct. 478, 24 L. Ed. 2d 449 (1969); Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2d Cir. 1969); Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968); Milky Way Productions, Inc. v. Leary, 305 F. Supp. 288 (3-judge court), aff'd 397 U.S. 98, 90 S. Ct. 817, 25 L. Ed. 2d 78 (1970); United States v. Pryba, 312 F. Supp. 466 (D.D.C. April 2, 1970).
Counts one through five in the instant case can readily be distinguished from all of the above cases in that the materials which are the subject of the charge were purchased by an undercover policeman, and not seized. Here the two packets of photographs and the five films, which are the subjects of counts one through five, were purchased from the defendant prior to any seizure, and a conviction can be sustained on these materials alone if they are adjudged to be obscene without consideration of the materials (thirty films) which are the subject of count six. To require a prior adversary determination of obscenity vel non under the present facts would result in the absurdity of requiring the police undercover agents to have an adversary hearing before even making a purchase of suspected obscene materials.
As to the remaining count, count six, which involves the materials seized from the trunk of defendant's car, the Court agrees with the reasoning in the case of United States v. Pryba, 312 F. Supp. 466 (D.D.C. April 2, 1970), and Milky Way Productions, Inc. v. Leary, 305 F. Supp. 288 (3-judge court), aff'd 397 U.S. 98, 90 S. Ct. 817, 25 L. Ed. 2d 78 (1970), and finds that there was no need for a prior adversary hearing as to a determination of obscenity in this particular case.
The Courts which take the opposing view rely mainly on Quantity of Copies of Books v. Kansas.
The Court in Books, dealing with a massive seizure of many types of books in the public domain, required a prior adversary hearing in order to protect against the possible seizure of non-obscene materials and an adverse effect on the First Amendment right of free speech. There is little danger of this in the present case where the material was not in the public domain, was handled furtively, and was separated here, even physically, i.e., under the counter and in the car trunk, from non-obscene materials. The public is not prevented from seeing or having available to it any non-obscene materials. The present case is clearly distinguishable from those requiring a prior adversary hearing.
These cases are inapposite since they involved massive seizures of books under state statutes which authorized warrants for the seizure of obscene materials as a first step in civil proceedings seeking their destruction. The seizures in this case were instrumentalities and evidence of the crime for which appellants were indicted and lawfully arrested.