304 N.E.2d 908
No. 73-138Supreme Court of Ohio.
Decided December 19, 1973.
Criminal procedure — Exhibiting obscene motion picture film — Conviction reversed, when.
APPEAL from the Court of Appeals for Trumbull County.
Appellants are the manager and projectionist of the Cinema One Theater, an “adult only” motion picture theater located in the city of Girard. On January 21, 1972, a police captain and three officers of the Girard police department entered the theater, walked past the box office and into the lobby, and announced to one of the appellants that they were investigating the theater. A few hours earlier, and without having viewed the film, the officers had obtained two “John Doe” arrest warrants. The warrants were issued by the Girard Municipal Court upon the basis of affidavits, signed by the police captain, alleging that unnamed defendants had exhibited “a movie portraying nudity, sexual misconduct, sexual excitement or which was obscene” in violation of a Girard ordinance.
In the exhibition area of the theater, the officers observed a film, titled “Mother Knows Best,” in progress on the screen. After approximately 20 minutes, the officers concluded that the exhibition of the film was in violation of the city’s ordinance, and arrested appellants on the authority of the “John Doe” warrants obtained earlier. Concurrent with these arrests, the officers confiscated the theater’s projector and the film that was being exhibited. The officers had not obtained a search warrant before seizing the projector and film and there had been no prior independent judicial determination of probable cause by a neutral, detached magistrate. Appellant’s motions to suppress the evidence seized at the theater and to quash the affidavits were overruled.
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The trial court found appellants guilty as charged, sentenced each to 30 days in jail and imposed fines of $300. In a written opinion, the court found that the film was unlawful under the Girard ordinance, and was within the United States Supreme Court’s definition of obscenity. The trial court held further that the seizure of the projector and film was lawful as a search and seizure of evidence incident to an arrest. Upon appeal, the Court of Appeals affirmed.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Emmon F. Snyder, prosecuting attorney, for appellee.
Messrs. Berkman, Gordon Kancelbaum, Mr. Bernard A. Berkman
and Mr. Harold L. Levy, for appellants.
Per Curiam.
Under the decisions of the Supreme Court of the United States in Roaden v. Kentucky (1973), 413 U.S. 496, and Heller v. New York (1973), 413 U.S. 483, the judgment of the Court of Appeals must be reversed.
Judgment reversed.
O’NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.
HERBERT, J., concurring.
I concur in the conclusion that, unfortunately, these convictions must be reversed, but do not agree with the method employed by the court in so doing.
Appellants briefed and argued the assertions that the film here involved was not obscene and that the ordinance under which they were convicted was unconstitutional. The trial court ruled adversely as to both of these contentions, thereby placing squarely before us the cases of Roth v. United States (1957), 354 U.S. 476, and Memoirs v. Massachusetts (1966), 383 U.S. 413, and raising the question of the effect upon those cases of Miller v California (1973), 413 U.s. 15. The problems attendant with this line of cases
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will not diminish, and we owe it to the bench and bar of this state to provide firm guidelines, as this court determines them to be, for the future defense and prosecution of obscenity indictments and affidavits in Ohio.
There is no doubt that Roaden v. Kentucky (1973), 413 U.S. 496, requires us to find that the appellants’ motion to suppress the seized evidence should have been sustained. However, a reading of the record at bar renders it equally clear that, in the absence
of the illegally obtained evidence, sufficient evidence remains to warrant, at the least, a discussion of Chapman v. California
(1967), 386 U.S. 18. And, of course, once this point is reached, a ruling upon the constitutionality of the Girard ordinance, in light of Miller, becomes imperative.
This and other state courts of last resort recently were reversed by the Supreme Court of the United States for permitting the seizure of obscene materials without the prior issuance of a valid search warrant; two recent cases from that court which deal with this question are Roaden, supra, and Heller v. New York
(1983), 413 U.S. 483. We owe it to the bench and bar of Ohio to set forth our interpretation of these cases, so that police officers and magistrates will know exactly what is expected of them in the obtaining and issuance of search warrants for the seizure of apparently obscene materials.
Throughout this state, trial judges, prosecutors and defense counsel have long struggled with unsettled law in the field of obscenity. This uncertainty has stemmed mainly from a difference of authoritative opinion concerning the measure of protection accorded purveyors of obscenity by the First and Fourth Amendments to the Constitution of the United States. Miller, Roaden and Heller can go a long way to settle these differences, provided we all interpret those cases in the same manner. Only this court, in a full and studied opinion, can insure that universality in Ohio, and that is the type of opinion we should have rendered in this case.
STERN, J., concurs in the foregoing concurring opinion.
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