Good v. State
This text of 195 S.E.2d 264 (Good v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
Defendant theater owner appeals from his conviction for exhibiting obscene motion pictures. His primary enumeration of error is the denial of his motion to suppress the film on the ground of illegal seizure. The State concedes that the seizure was made under the authority of an arrest warrant based only on the affidavit of the district attorney stating that the films were obscene and that there was no prior adversarial hearing to determine the issue of obscenity.
After some years of confusion in the law, it now appears that a prior adversarial hearing to determine obscenity is not a constitutional prerequisite for seizure of materials as evidence in a criminal prosecution. Milky Way Productions v. Leary, 305 FSupp. 288, affirmed 397 U. S. 98; United States v. Fragus, 428 F2d 1211 (5th Cir.); Russ v. Hand, No. 14724, March 1, 1971 (N. D. Ga.). Cf., A Quantity of Books v. Kansas, 378 U. S. 205 (84 SC 1723, 12 LE2d 809); Marcus v. Search Warrant, 367 U. S. 717 (81 SC 1708, 6 LE2d 1127); Kingsley Books, Inc. v. Brown, 354 U. S. 436 (77 SC 1325, 1 LE2d 1469); Metro Theatre v. Slaton, 228 Ga. 102 (184 SE2d 144); Walter v. Slaton, 227 Ga. 676 (182 SE2d 464); Evans Theater Corp. v. Slaton, 227 Ga. 377 (180 SE2d 712), all of which involve condemnation or injunction proceedings.
The test of lawful seizure, then, is whether it was made incident to a lawful arrest or pursuant to a lawful search warrant; and the usual issues, such as probable cause, are involved. Here there was an arrest warrant. The [776]*776defendant contends that a search warrant was essential. We do not believe the distinction is material in this type of obscenity case. The film was exhibited publicly. There was no "search” necessary. The issue is whether there was probable cause to believe the film was obscene — the only basis for a criminal prosecution and therefore the only basis for the issuance of an arrest warrant.
A major difficulty in this case is that the sufficiency of the warrant does not appear to have been argued. We have no transcript of the motion to suppress, but based on the contentions made on this appeal, the chief issues were considered to be the necessity for a search warrant and for a prior adversarial hearing. However, a copy of the warrant is in the record. It is clearly insufficient on its face to show probable cause. It merely states the bold conclusion of the affiant district attorney (who admitted at the trial he had never seen the film) that the defendant had exhibited two named films which were obscene material.
"Admission in evidence of allegedly obscene motion picture films seized under the authority of a warrant issued by a justice of the peace on a police officer’s affidavit giving the films’ titles, and stating that he had determined from personal observation of the films and of the theatre’s billboard that they were obscene, was erroneous, as the issuance of the warrant without the justice of the peace’s inquiry into the factual basis for the officer’s conclusions fell short of constitutional requirements demanding necessary sensitivity to freedom of expression.” Lee Art Theater v. Virginia, 392 U. S. 636 (88 SC 2103, 20 LE2d 1313).
The admission of the film was erroneous and the balance of the evidence cannot save the verdict. Under our Constitution, the test of obscenity is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” (Emphasis supplied.) Roth v. United States, 354 U. S. 476, 489 (77 SC 1304, 1 LE2d [777]*7771498). We cannot conceive of how a jury could apply the Roth test to a film without having seen it, i.e., make a sophisticated value judgment on the libidinous effect of a visual experience, without having had the experience. The most detailed and apparently objective second-hand oral description could not have the same impact and would necessarily be colored by the effect on the narrator. However, even if we made the dubious assumption that the oral evidence of several witnesses might support a verdict, it could hardly demand one.
The illegal admission of the film itself cannot be held harmless error. In a criminal case, "before a constitutional error can be held to be harmless the court must be able to declare its belief that it is harmless beyond a reasonable doubt.” Chapman v. California, 386 U. S. 18 (2) (87 SC 824, 17 LE2d 705, 24 ALR3d 1065). This court cannot say beyond a reasonable doubt that the jury did not base its verdict upon the inadmissible film.
The trial court erred in denying the motion to suppress the film and its admission was not harmless error. In view of this determination, it is unnecessary to consider defendant’s other enumerations of error.
Judgment reversed.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
195 S.E.2d 264, 127 Ga. App. 775, 1972 Ga. App. LEXIS 1020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/good-v-state-gactapp-1972.