Glass v. Eighth Judicial District Court

486 P.2d 1180, 87 Nev. 321, 1971 Nev. LEXIS 422

• Court: Nevada Supreme Court
• Decided: July 2, 1971
• Docket: 6303
• Status: Published

Opinions

OPINION

By the Court,

Thompson, J.:

This original proceeding in certiorari tests the constitutionality of NRS 201.250 which, among other matters, makes it a misdemeanor knowingly to distribute or exhibit any obscene item. This remedy is appropriate to challenge the constitutionality of an ordinance or statute. NRS 34.020(3); City of Reno v. District Court, 83 Nev. 201, 427 P.2d 4 (1967).

It is the petitioner’s contention that the criminal portions of our obscenity law are constitutionally inadequate since no provision is made for an adversary hearing on the issue of obscenity before the criminal procedures are invoked. The petitioner is the proprietor of a motion picture house and was charged with exhibiting allegedly obscene films entitled, “The Muthers,” and “Wanda, the Sadistic Hypnotist.” A search warrant was issued ex parte by a magistrate on the basis of an affidavit of a criminal investigator who had viewed each film the preceding day, and the films were seized. The investigator’s affidavit recited his personal impressions of the films. The complaints were dismissed in the justice court on the ground that the seizure of the films was unconstitutional since there had not been a prior adversary hearing on the issue of obscenity. The district court reversed those dismissals and this independent certiorari proceeding was then instituted. We are not called upon to decide whether the films are in fact obscene.

1. It is settled that obscenity does not enjoy constitutional protection. Roth v. United States, 354 U.S. 476 (1957). It is equally clear that motion pictures are within the ambit of the constitutional guarantee of freedom of speech and of the press. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959); Jacobellis v. Ohio, 378 U.S. 184 (1964). Consequently, appropriate deference to the First Amendment is required since the public has the right to receive nonobscene materials. It is for this reason that a hearing designed to “focus searchingly on the issue of obscenity” must occur prior to seizure. A Quantity of Books v. Kansas, 378 U.S. 205 (1964); Lee Art Theatre v. Virginia, 392 U.S. 636 (1968); Marcus v. Search Warrant, 367 U.S. 717 (1961); Demich, Inc. v. Ferdon, 426 F.2d 643 (9 Cir. 1970), reversed on other grounds; Cambist Films, Inc. v. Duggan, 420 F.2d 687 (3 Cir. 1969); Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2 Cir. 1969); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4 Cir. 1969); Metzger v. Pearcy, 393 F.2d 202 (7 Cir. 1968). “The separation of legitimate from illegitimate speech calls for . . . sensitive tools. ...” A Quantity of Books v. Kansas, at 212. The ex parte affidavit of a law officer stating what he viewed is not sufficient (Demich, Inc. v. Ferdon, supra; Cambist Films, Inc. v. Duggan, supra; Bethview Amusement Corp. v. Cahn, supra; Tyrone, Inc. v. Wilkinson, supra; Lee Art Theatre v. Virginia, supra), nor is it enough for the magistrate to view the film prior to seizure. Demich, Inc. v. Ferdon, supra, Tyrone, Inc. v. Wilkinson, supra.

We regard it as settled that the First and Fourteenth Amendments require that there be an adversary judicial hearing and determination of obscenity before a warrant may be issued to search and seize the single copies of allegedly obscene films.¹ Compliance with the proscriptions of the Fourth Amendment is not sufficient. Although it is suggested that such a hearing is not required absent a “massive” seizure as in Marcus v. Search Warrant, supra, and A Quantity of Books v. Kansas, supra, it is evident to us that the restraint following the seizure in this case may have been as serious in its consequences as the restraint following a massive seizure of one’s books held for distribution and sale. Where one’s First Amendment rights are exercised by exhibition, restraint clearly follows from seizure of the film to be exhibited. Demich, Inc. v. Ferdon, supra; Beth-view Amusement Corp. v. Cahn, supra. We express no opinion upon the need for such an adversary hearing in situations other than the one before us.

2. We are not aware of any case holding that a criminal obscenity statute must contain a provision for such an adversary hearing in order to successfully withstand constitutional challenge. The adversary hearing requirement is directed solely to the validity of a seizure and has no bearing upon how a criminal statute is to be structured. Certiorari, although available to test the constitutionality of a statute, is not available to decide a question of the admissibility of evidence. Evidence obtained in violation of constitutional requirements may be suppressed. NRS 179.085; Cook v. State, 85 Nev. 692, 462 P.2d 523 (1969). This is an adequate legal remedy. Accordingly, we dismiss this petition for certiorari. The order of the district court, to the extent that it remanded the cases to the justice court for trial, shall stand. The matter of the admissibility of the seized films will there be resolved in line with this opinion if the prosecutor elects to proceed further.²

Zenoff, C. J., and Gunderson, J., concur.

1 A 1965 amendment, NRS 201.250(4) does provide for an adversary hearing through the use of the civil injunctive process. This part of our statute was borrowed from Arizona, A.R.S. 13-535, and has been declared constitutional by the intermediate appellate court of that state. City of Phoenix v. Fine, 420 P.2d 26 (C.App.Ariz. 1966).

2 Criminal prosecutions for obscenity are not frustrated by this opinion. A seizure of the allegedly obscene film is not essential in order to prove a case. Other procedures are available as noted in Demich, Inc. v. Ferdon, supra; Bethview Amusement Corp. v. Cahn, supra; and United Artists Theatre Circuit, Inc. v. Thompson, 316 F.Supp. 815 (W.D. Ark. 1970). See also comments at 46 New York Univ. L.R. 80 and 15 South Dakota L.R. 399.