State v. All Star News Agency, Inc. , 580 S.W.2d 245 ( 1979 )

PER CURIAM:

This appeal involves two civil proceedings, consolidated here and at trial, wherein the State seeks forfeiture and destruction, under §§ 542.281 and 542.301.3, RSMo Supp. 1975 of magazines and movies seized from appellant. Appellant was a wholesale distributor of magazines and movies in St. Louis.

The statutes involved provide a civil procedure whereby the State may search for, seize, and destroy obscene material. In general terms they provide, where twenty or more items are at issue, for a four-stage process. First, upon application of the State to a court for a warrant to search for and seize obscene material, the dealer or exhibitor of the obscene matter must be given notice and an adversary hearing. Once notice is received, any removal or alteration of the material at issue is punishable by contempt. Second, an adversary hearing must be held before a search warrant for such material may issue. The purpose of the hearing is to determine whether there is probable cause to believe that the material is located where alleged and will ultimately be found to be obscene. Third, if a warrant issues, a determination of obscenity is made by an advisory jury. Fourth, the trial judge determines, after the jury verdict, whether the material is obscene or not obscene as a matter of law. If the material is obscene, an order of forfeiture and destruction issues.

The proceedings at issue in this appeal are virtually identical except that one involves the seizure solely of movie films while the other involves the seizure solely of magazines. Over 1,000 films were seized. Nearly 13,000 magazines were seized.

The first proceeding was commenced on September 9, 1977, by issuance and service upon appellant of a Notice of Adversary Hearing. The notice listed the material for which a search warrant was being sought and in substance stated, as provided by § 542.281.5, that “After service of notice of the hearing, intentional alteration, destruction, or removal of any matter, or duplicate of matter, described in the notice shall be punished as contempt of court.” A police officer was stationed at appellant’s warehouse to insure that no material was removed.

The adversary hearing began September 19, 1977. This proceeding involved movie films.

The second proceeding progressed similarly. It commenced on September 21, 1977, by issuance and service of a Notice of Adversary Hearing. The notice contained the same warning against removal or alteration of the material listed as in the proceeding involving movie films. A police officer was stationed at appellant’s warehouse to insure that no material was removed. The adversary hearing was held September 23, 1977. This proceeding involved magazines.

The cases pertinent to this appeal are Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); A Quantity of Books, et al. v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); and Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973).

In our opinion, insofar as they pertain to the facts and issues on this appeal, the teachings of these cases are:

(1) that all materials alleged to be obscene are presumptively protected under the First Amendment.

(2) that, as a general proposition, no restraint on dissemination of presumptively protected material prior to a judicial adversary hearing on the question of probable obscenity is constitutionally permissible.

(3) that a prior restraint of one copy of each magazine or film alleged to be obscene may be permissible in order that a determination of the question of probable obscenity may be made.

(4) that the ultimate purpose of the taking of such copy (for use as evidence at a criminal trial; for use as evidence in an injunction proceeding; or for destruction) is irrelevant.

(5) that a restraint, prior to a judicial adversary hearing, of more material than is necessary for a determination of the question of probable obscenity is constitutionally impermissible.

In the instant case, there were restraints of all copies of magazines and movies in the warehouse between the time the notices of adversary hearing were served and the adversary hearings were held. There were prior restraints of materials presumptively protected under the First Amendment. This was constitutionally impermissible under the First, Fourth, and Fourteenth Amendments. Since a violation of these Amendments infected the proceedings, in order to vindicate appellant’s constitutional rights the judgments must be reversed, and the causes remanded for further proceedings not inconsistent with this opinion. Marcus, supra, 367 U.S., l.c. 738, 81 S.Ct. 1708.

The judgments are reversed and the causes remanded.

MORGAN, C. J., and BARDGETT, RENDLEN, SIMEONE and WELLIVER, JJ., concur. DONNELLY, J., concurs in separate concurring opinion filed. SEILER, J., concurs and concurs in separate concurring opinion of DONNELLY, J.