State v. Simmons

252 S.E.2d 572, 272 S.C. 465, 1979 S.C. LEXIS 316

• Court: Supreme Court of South Carolina
• Decided: February 23, 1979
• Docket: 20894
• Status: Published

Opinions

Lewis, Chief Justice:

This appeal involves separate prosecutions against each of nine appellants for exhibiting obscene materials in violation of the then existing South Carolina obscenity statute, Section 16-15-150 et seq., 1976 Code of Laws. Appellants were employees of various so-called “adult bookstores” in Spartanbug County and were arrested on charges of exhibiting obscene materials through certain films shown on coin operated “peep show” machines within each establishment. Although the cases involved several different places of business, they were by agreement jointly tried before the Court without a jury, some before the presiding circuit judge and others, (not listed here), before the judge of the Spartan-burg County Court. All were found guilty and have appealed. Their respective appeals involve the same basic issues and have been consolidated for consideration by this Court.

The fact of obscenity is not challenged. Appellants only challenge the lawfulness of the seizure by the officers of the alleged obscene materials. The procedures followed by the officers were substantially the same in all of the cases. When they visited each of the “adult bookstores” they viewed films exhibited in coin operated machines and, as a result, arrested the several appellants for violations of the State obscenity laws. At the same time, the officers seized, as evidence, the materials they had viewed and believed to be obscene. The arrests and seizures of the various materials were made without prior issuance of warrants of arrest or search and seizure.

Prior to the trial of these cases in the lower court, a motion was filed on behalf of all appellants to suppress the seized materials as evidence and for their return to the owners upon the ground that the materials seized as evidence, were obtained through an unlawful search and seizure in violation of their rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution and the like provisions of the South Carolina Constitution. The motion was denied and all appellants were found guilty. The order denying the motion to suppress was based upon the grounds that the warrantless seizures were proper (1) in view of the provisions of Section 16-15-210(b), (c), and (d), which basically provided for post-seizure proceedings to afford a prompt initial determination of whether reasonable grounds existed to believe the materials were obscene; and (2) due to the existence of exigent circumstances.

The statutes, under which the officers proceeded in these cases and under which appellants were prosecuted, have since been repealed by Act No. 495 of the 1978 Acts of the General Assembly; and the present general law of the State with regard to obscenity and related offenses is set forth in the aforementioned Act. Clearly, under the new Act, the validity of the warrantless seizures in these cases could not be sustained.

While the constitutional proscription of the questioned seizures is not clearly shown, the holdings in Heller v. New York, 413 U. S. 483, 93 S. Ct. 2789, 37 L. Ed. (2d) 745, and Roaden v. Kentucky, 413 U. S. 496, 93 S. Ct. 2796, 37 L. Ed. (2d) 757, cast sufficient doubt on the validity of the actions of the officers to warrant reversal of the judgments under appeal. The General Assembly evidently entertained similar doubts in enacting the present statute, which, in effect, recognizes the application of Heller and Roaden to warrantless searches and seizures under the State’s then existing statutes.

The judgments under appeal are accordingly reversed and the causes remanded for a new trial.

Ness, Rhodes and Gregory, JJ., concur. Littlejohn, J., dissents.