SIMPSON, Circuit Judge:
This action arises from the seizure of a single print of the motion picture film, “The Secret Sex Lives of Romeo and Juliet”, and the arrest by police of the City of Orlando of the owner and operator of the theatre in which the film was exhibited. The basis of the seizure and arrest was the alleged obscenity of the film under the provisions of City Ordinance Sec. 48.56-1 of the City of Orlando and Florida Statutes, Sections 847.011 and 847.03, F.S.A. adopted in haec verba and in toto by the city ordinance. We do not reach the issue of obscenity.
Plaintiffs sought judgment declaring Sections 847.011 and 846.03 of the Florida Statutes, F.S.A. unconstitutional on their face; an order suppressing the seizure of the film, and its return; and temporary and permanent injunctions against further prosecution of the plaintiffs in the Municipal Court of the City of Orlando. A three-judge court has been convened pursuant to Title 28, U.S. C., Section 2284.2 Motion for temporary restraining order was denied by Judge Young of this court. The parties have stipulated to all the relevant facts [see Appendix] and submitted the case for [968]*968final decision under the facts as stipulated.
We must determine whether an arrest and seizure3 made without a prior adversary judicial determination of the claimed obscene character of the seized film is constitutionally permissible.
The general proposition that a prior adversary judicial determination must be made before obscene material may be seized is settled by the weight of authority and is an essential safeguard to protect the evanescent guarantee of freedom of speech. Marcus v. Search Warrants of Property, 1961, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; A Quantity of Copies of Books v. Kansas, 1964, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; Bethview Amusement Corp. v. Cahn, 2 Cir. 1969, 416 F.2d 410; Tyrone, Inc. v. Wilkinson, 4 Cir. 1969, 410 F.2d 639, cert. denied 396 U.S. 985, 90 S.Ct. 478, 24 L.Ed.2d 449 (1969); Metzger v. Pearcy, 7 Cir. 1968, 393 F.2d 202; City News Center, Inc. v. Carson, M.D.Fla. 1969, 298 F.Supp. 706; Morrison v. Wilson, 307 F.Supp. 196 [N.D.FIa. Dec. 5, 1969] (three-judge court); May v. Harper, 306 F.Supp. 1222 [N.D.FIa. Nov. 28, 1969]; HMH Publishing Co. v. Oldham, 306 F.Supp. 495 [M.D.Fla. Oct. 15, 1969]; Entertainment Ventures, Inc. v. Brewer, M.D.Ala. Sept. 30, 1969, 306 F.Supp. 802; Masters v. Russell, 308 F.Supp. 306 [M.D.Fla. Sept. 1969]; Gable v. Jenkins, 309 F.Supp. 998 [N.D. Ga. Oct. 1969] (three-judge court); Carter v. Gautier, 305 F.Supp. 1098 [M.D.Ga. September 15, 1969] (three-judge court); Mandell v. Carson, 309 F.Supp. 326 [M.D.Fla. Oct. 8, 1969]; Central Agency, Inc. v. Brown, 306 F.Supp. 502 [N.D.Ga. Aug. 26, 1969]; Delta Book Distributors, Inc. v. Cronvich, E.D.La.1969, 304 F.Supp. 662 (three-judge court); Sokolic v. Ryan, S.D.Ga.1969, 304 F.Supp. 213; Fontaine v. Dial, W.D.Tex.1969, 303 F.Supp. 436; Grove Press, Inc. v. City of Philadelphia, E.D.Pa.1969, 300 F.Supp. 281; Cambist Films, Inc. v. Tribell, E.D.Ky.1968, 293 F. Supp. 407; Cambist Films, Inc. v. Illinois, N.D.Ill. 1968, 292 F.Supp. 185; United States v. Brown, S.D.N.Y.1967, 274 F.Supp. 561; Felton v. City of Pensacola, Fla.App.1967, 200 So.2d 842, rev’d on other grounds, 1968, 390 U.S. 340, 88 S.Ct. 1098, 19 L.Ed.2d 1220; Contra, Milky Way Productions, Inc. v. Leary, S.D.N.Y.1969, 305 F.Supp. 288; Schackman v. Arnebergh, C.D. Calif. 1966, 258 F.Supp. 983; Pinkus v. Arnebergh, C.D.Calif.1966, 258 F.Supp. 966.
The real question posed is whether law enforcement officers may for the purpose of obtaining evidence for use in a criminal prosecution seize a single print of film (as opposed to cases involving mass seizure of books, e. g. A Quantity of Books v. Kansas, supra) without having an adversary judicial hearing prior to the seizure. On this issue, the authorities are split. Compare Bethview Amusement, supra; 4 Tyrone v. Wilkinson, supra; Metzger v. Pearcy, supra; Carter v. Gautier, supra; Delta Book Distributors, Inc. v. Cronvich, supra; with United States v. Wild, 2 Cir. 1969, 422 F.2d 34 [October 29, 1969]; Bazzell v. Gibbens, E.D.La.1969, 306 F.Supp. 1057; United States v. Appell, D.C.Md.1968, 259 F.Supp. 156; Rage Books, Inc. v. Leary, S.D.N.Y.1969, 301 F.Supp. 546 (appeal pending). We adopt the reasoning expressed in Bethview, supra, 416 F.2d at 412:
“Appellants argue that there is a difference between the seizure of a large number of books and the seizure of a single print of a motion picture film. We do not agree that the difference is legally significant. We are told that the Bethview Theater has 300 seats. Assuming half of them to be occupied for four showings of a film [969]*969each day for a week, over 4000 individuals would see the film. Preventing so large a group in the community from access to a film is no different, in the light of first amendment rights, from preventing a similarly large number of books from being circulated.
“We are supported in our view that the rule of the Kansas case is equally applicable to seizure of films by the recent decisions of sister circuits in Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968) and Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969). In Metzger the court said at p. 204:
‘This analysis [of the Supreme Court cases] requires this court to hold unconstitutional the seizure of the film “I, a Woman” since there must be an adversary hearing on the issue of obscenity before a movie can be constitutionally seized.’
"The appellants contend that a print of the motion picture is needed for purposes of prosecution. There are a number of ways in which this can be accomplished without seizure of the film. The court can direct that a print be made reasonably available to the prosecution; a subpoena duces tecum can be used.
“Finally it is suggested that unless the police or other local authorities have actual possession of the film pending the required adversary proceeding, the distributor may take advantage of the delay, for example, by shipping the film out of the jurisdiction or by cutting out the offending scenes. If there is a real threat of such activity it can be controlled by an ex parte restraining order.”
We hold therefore that the seizure and arrest were unlawful because there was no prior judicially superintended adversary determination of the obscenity of the moving picture film in question. The seizure of the film must be suppressed and the film accordingly returned to the plaintiffs.
Plaintiffs seek to enjoin the defendant from proceeding with prosecutions against them, as well as from enforcing Section 847.03 of the Florida Statutes, F.S.A. with respect to “The Secret Sex Lives of Romeo and Juliet” in the future. We decline to grant such permanent injunctive relief against future prosecutions.
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SIMPSON, Circuit Judge:
This action arises from the seizure of a single print of the motion picture film, “The Secret Sex Lives of Romeo and Juliet”, and the arrest by police of the City of Orlando of the owner and operator of the theatre in which the film was exhibited. The basis of the seizure and arrest was the alleged obscenity of the film under the provisions of City Ordinance Sec. 48.56-1 of the City of Orlando and Florida Statutes, Sections 847.011 and 847.03, F.S.A. adopted in haec verba and in toto by the city ordinance. We do not reach the issue of obscenity.
Plaintiffs sought judgment declaring Sections 847.011 and 846.03 of the Florida Statutes, F.S.A. unconstitutional on their face; an order suppressing the seizure of the film, and its return; and temporary and permanent injunctions against further prosecution of the plaintiffs in the Municipal Court of the City of Orlando. A three-judge court has been convened pursuant to Title 28, U.S. C., Section 2284.2 Motion for temporary restraining order was denied by Judge Young of this court. The parties have stipulated to all the relevant facts [see Appendix] and submitted the case for [968]*968final decision under the facts as stipulated.
We must determine whether an arrest and seizure3 made without a prior adversary judicial determination of the claimed obscene character of the seized film is constitutionally permissible.
The general proposition that a prior adversary judicial determination must be made before obscene material may be seized is settled by the weight of authority and is an essential safeguard to protect the evanescent guarantee of freedom of speech. Marcus v. Search Warrants of Property, 1961, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; A Quantity of Copies of Books v. Kansas, 1964, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; Bethview Amusement Corp. v. Cahn, 2 Cir. 1969, 416 F.2d 410; Tyrone, Inc. v. Wilkinson, 4 Cir. 1969, 410 F.2d 639, cert. denied 396 U.S. 985, 90 S.Ct. 478, 24 L.Ed.2d 449 (1969); Metzger v. Pearcy, 7 Cir. 1968, 393 F.2d 202; City News Center, Inc. v. Carson, M.D.Fla. 1969, 298 F.Supp. 706; Morrison v. Wilson, 307 F.Supp. 196 [N.D.FIa. Dec. 5, 1969] (three-judge court); May v. Harper, 306 F.Supp. 1222 [N.D.FIa. Nov. 28, 1969]; HMH Publishing Co. v. Oldham, 306 F.Supp. 495 [M.D.Fla. Oct. 15, 1969]; Entertainment Ventures, Inc. v. Brewer, M.D.Ala. Sept. 30, 1969, 306 F.Supp. 802; Masters v. Russell, 308 F.Supp. 306 [M.D.Fla. Sept. 1969]; Gable v. Jenkins, 309 F.Supp. 998 [N.D. Ga. Oct. 1969] (three-judge court); Carter v. Gautier, 305 F.Supp. 1098 [M.D.Ga. September 15, 1969] (three-judge court); Mandell v. Carson, 309 F.Supp. 326 [M.D.Fla. Oct. 8, 1969]; Central Agency, Inc. v. Brown, 306 F.Supp. 502 [N.D.Ga. Aug. 26, 1969]; Delta Book Distributors, Inc. v. Cronvich, E.D.La.1969, 304 F.Supp. 662 (three-judge court); Sokolic v. Ryan, S.D.Ga.1969, 304 F.Supp. 213; Fontaine v. Dial, W.D.Tex.1969, 303 F.Supp. 436; Grove Press, Inc. v. City of Philadelphia, E.D.Pa.1969, 300 F.Supp. 281; Cambist Films, Inc. v. Tribell, E.D.Ky.1968, 293 F. Supp. 407; Cambist Films, Inc. v. Illinois, N.D.Ill. 1968, 292 F.Supp. 185; United States v. Brown, S.D.N.Y.1967, 274 F.Supp. 561; Felton v. City of Pensacola, Fla.App.1967, 200 So.2d 842, rev’d on other grounds, 1968, 390 U.S. 340, 88 S.Ct. 1098, 19 L.Ed.2d 1220; Contra, Milky Way Productions, Inc. v. Leary, S.D.N.Y.1969, 305 F.Supp. 288; Schackman v. Arnebergh, C.D. Calif. 1966, 258 F.Supp. 983; Pinkus v. Arnebergh, C.D.Calif.1966, 258 F.Supp. 966.
The real question posed is whether law enforcement officers may for the purpose of obtaining evidence for use in a criminal prosecution seize a single print of film (as opposed to cases involving mass seizure of books, e. g. A Quantity of Books v. Kansas, supra) without having an adversary judicial hearing prior to the seizure. On this issue, the authorities are split. Compare Bethview Amusement, supra; 4 Tyrone v. Wilkinson, supra; Metzger v. Pearcy, supra; Carter v. Gautier, supra; Delta Book Distributors, Inc. v. Cronvich, supra; with United States v. Wild, 2 Cir. 1969, 422 F.2d 34 [October 29, 1969]; Bazzell v. Gibbens, E.D.La.1969, 306 F.Supp. 1057; United States v. Appell, D.C.Md.1968, 259 F.Supp. 156; Rage Books, Inc. v. Leary, S.D.N.Y.1969, 301 F.Supp. 546 (appeal pending). We adopt the reasoning expressed in Bethview, supra, 416 F.2d at 412:
“Appellants argue that there is a difference between the seizure of a large number of books and the seizure of a single print of a motion picture film. We do not agree that the difference is legally significant. We are told that the Bethview Theater has 300 seats. Assuming half of them to be occupied for four showings of a film [969]*969each day for a week, over 4000 individuals would see the film. Preventing so large a group in the community from access to a film is no different, in the light of first amendment rights, from preventing a similarly large number of books from being circulated.
“We are supported in our view that the rule of the Kansas case is equally applicable to seizure of films by the recent decisions of sister circuits in Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968) and Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969). In Metzger the court said at p. 204:
‘This analysis [of the Supreme Court cases] requires this court to hold unconstitutional the seizure of the film “I, a Woman” since there must be an adversary hearing on the issue of obscenity before a movie can be constitutionally seized.’
"The appellants contend that a print of the motion picture is needed for purposes of prosecution. There are a number of ways in which this can be accomplished without seizure of the film. The court can direct that a print be made reasonably available to the prosecution; a subpoena duces tecum can be used.
“Finally it is suggested that unless the police or other local authorities have actual possession of the film pending the required adversary proceeding, the distributor may take advantage of the delay, for example, by shipping the film out of the jurisdiction or by cutting out the offending scenes. If there is a real threat of such activity it can be controlled by an ex parte restraining order.”
We hold therefore that the seizure and arrest were unlawful because there was no prior judicially superintended adversary determination of the obscenity of the moving picture film in question. The seizure of the film must be suppressed and the film accordingly returned to the plaintiffs.
Plaintiffs seek to enjoin the defendant from proceeding with prosecutions against them, as well as from enforcing Section 847.03 of the Florida Statutes, F.S.A. with respect to “The Secret Sex Lives of Romeo and Juliet” in the future. We decline to grant such permanent injunctive relief against future prosecutions.
In view of our holding that the arrest and seizure are invalid for want of a prior adversary judicial determination of obscenity, which holding requires suppression of the seizure and return of the film, this prosecution, for practical purposes, is terminated. We have no reason to question that the defendant will, in good faith, abide by o.ur requirement of a prior adversary hearing as to pending or future prosecutions or future arrests and seizures. If our holding is complied with, no injunctions are necessary. We retain jurisdiction for the purposes of hereafter entering any orders necessary to enforce the views expressed herein. Delta Book Distributors, Inc. v. Cronvich, supra.
We decline to pass on the constitutionality of Florida Statutes, Sections 847.011 and 847.03, F.S.A. The same challenges are raised in another ease, Meyer v. Austin, M.D.Fla. No. 69-678-Civ-J., argued before this same panel on the same day as the present case. They do not need to be reached to dispose of this ease. However, we do grant a temporary injunction against further proceedings, if any, arising at issue here, pending this panel’s decision in Meyer v. Austin, supra.
Judgment will be entered in accordance with this opinion.
JUDGMENT
For reasons assigned in Judge Simpson’s opinion for the majority of this court filed herein this day (Judge Young dissenting by separate opinion), it is ordered:
1. That all individual defendants other than Robert Chewning, Chief of Police of the City of [970]*970Orlando, be dismissed from this suit;
2. That the motion picture film, “The Secret Sex Lives of Romeo and Juliet”, seized from the plaintiffs on October 29, 1969, by Sgt. VanScoyoc of the Orlando Police Department, be returned, instanter, to the plaintiffs by the defendant Chewning, upon taking proper receipt therefor;
3. That use of said motion picture film is suppressed as evidence in any pending or future prosecutions based upon the seizure here involved;
4. That the preliminary and permanent injunctions prayed for are denied;
5. That the declaratory judgments prayed for are denied;
6. That defendant, his agents, employees or attorneys; are hereby temporarily restrained from seizing prints of the movie film, “The Secret Sex Lives of Romeo and Juliet”, in the custody of plaintiffs, or from engaging in any conduct related to prosecution for exhibition on or before October 30, 1969, until this court has ruled in Meyer v. Austin, No. 69-678-Civ-J (M.D.Fla.) (three-judge court); and
7. That jurisdiction is retained herein for the issuance of such further orders as may be necessary and proper.