People v. Lon Johnson

185 N.W.2d 150, 29 Mich. App. 118, 1970 Mich. App. LEXIS 1090

• Court: Michigan Court of Appeals
• Decided: December 10, 1970
• Docket: Docket 7708
• Status: Published

Opinions

J. H. Gillis, P. J.

On June 9, 1969, defendant, Lon Johnson, was convicted of possession of an obscene movie with intent to show it to others. MCLA § 750.343a (Stat Ann 1970 Cum Supp § 28.575 [1]).

The facts are not in dispute. On November 6,1968, two Highland Park police officers went to the Hiland Art Theatre to view a motion picture entitled “Of the Same Gender”. After viewing the entire movie, they returned to the police station, conferred with the prosecutor, and on the basis of the personal observation of the movie by the officers, warrants for the arrest of defendant (the theatre manager) and seizure of the film were issued by a municipal judge.

The affidavits filed by the officers with the recommendation for the warrants were not conclusory. Bather, the officers detailed what they had seen and noted the length of time certain acts were performed on the screen. After obtaining the warrants, the officers returned to the theatre, viewed the film a second time, and then executed the warrants.

The defendant objected to the seizure of the film at examination and at trial. On appeal, he claims that the denial of his motions to suppress the film as evidence was error, and further, that the film was not constitutionally obscene. We disagree.

Defendant claims that an adversary hearing on the issue of obscenity must he held before the issuance of warrants in order to protect First Amendment freedoms of speech and expression.

The prosecutor argues that when a police officer reasonably believes that a misdemeanor is being committed in his presence, he is empowered, and duty hound, to make an arrest, and seize the evidence of the crime as an incident to that arrest.

It is elementary that freedom of speech and expression are constitutionally protected, and it is well established that movies, as a form of speech and expression, fall within this protection. Joseph Burstyn, Inc., v. Wilson (1952), 343 US 495 (72 S Ct 777, 96 L Ed 1098); Kingsley International Pictures Corp. v. Regents (1959), 360 US 684 (79 S Ct 1362, 3 L Ed 2d 1512); Jacobellis v. Ohio (1964), 378 US 184 (84 S Ct 1676, 12 L Ed 2d 793). However, as with other mediums, courts have not given motion pictures absolute freedom. As in every other form of expression, obscenity is not protected by the First Amendment guarantees of free speech. Roth v. United States (1957), 354 US 476 (77 S Ct 1304, 1 L Ed 2d 1498); Ginsberg v. New York (1968), 390 US 629 (88 S Ct 1274, 20 L Ed 2d 195). Moreover, in Burstyn, supra, pp 502, 503, the Court noted the capacity for greater evil in motion pictures than in other forms of expression :

“It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places. * # * Nor doés it follow that motion pictures are necessarily subject to the precise rules governing any other method of expression. Each method tends to present its own peculiar problems.”

Two decisions of the United States Supreme Court form the basis of defendant’s argument that a prior adversary hearing is required. In Marcus v. Search Warrant (1961), 367 US 717 (81 S Ct 1708, 6 L Ed 2d 1127), police obtained a general warrant to seize allegedly obscene material at five newsstands. The warrants were held invalid because they were issued on the strength of the conclusory assertions of a single police officer. In A Quantity of Books v. Kansas (1964), 378 US 205 (84 S Ct 1723, 12 L Ed 2d 809), the Court reversed an order for the destruction of books which had been seized pursuant to a warrant issued by a judge who had made only an ex parte determination of obscenity. Both cases established the trend requiring an adversary hearing on the obscenity issue prior to confiscation of books.

"We find, however, no United States Supreme Court cases extending this requirement to motion pictures. Lee Art Theatre, Inc., v. Virginia (1968), 392 US 636 (88 S Ct 2103, 20 L Ed 2d 1313) held that the seizure of a movie pursuant to a warrant issued on the strength of conclusory assertions of a police officer was invalid. Absent inquiry by the issuing magistrate into the factual basis for the officer’s conclusions, the procedure there fell short of the constitutional requirements demanding recognition of freedom of expression. There is nothing in Lee, supra, to suggest that a prior adversary hearing is required. We note that the affidavits in this case were sufficiently detailed so as to meet the requirement found in Lee, supra.

While we recognize that other courts have extended the requirement of a prior adversary hearing to the medium of motion pictures,¹ we conclude that here the officers, after viewing the entire movie and obtaining an arrest based on affidavits containing a sufficient factual foundation for the crime charged, were empowered to make a valid arrest. The seizure of the film was reasonable and lawful, being contemporaneous with a proper arrest and evidence of the crime. People v. Bloss (1969), 18 Mich App 410; 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 869.

We have viewed the movie and find that it is obscene in the constitutional sense as delineated by the United States Supreme Court. See Roth v. United States, supra; Redrup v. New York (1967), 386 US 767 (87 S Ct 1414, 18 L Ed 2d 515); Memoirs v. Massachusetts (1966), 383 US 413 (86 S Ct 975, 16 L Ed 2d 1); Ginzburg v. United States (1966), 383 US 463 (86 S Ct 942, 16 L Ed 2d 31). We find that the dominant theme of the movie as a whole appeals to prurient interest in sex, that it is patently offensive because it goes beyond contemporary community standards relating to the description of sexual matters, and that it is utterly without redeeming social value.

Affirmed.

Borbadaile, J., concurred.

1 See, e.g., Tyrone, Inc., v. Wilkinson (CA4, 1969), 410 F2d 639; Metzger v. Pearcy (CA7, 1968), 393 F2d 202.

1 Bethview Amusement Corp. v. Cahn (CA2, 1969), 416 F2d 410, 412.