Carroll v. City of Orlando ( 1970 )

GEORGE C. YOUNG, District Judge

(dissenting).

The majority opinion recognizes that the real question posed in this case is whether law enforcement officers may for the purpose of obtaining evidence for use in a criminal prosecution, seize a single print of film (as opposed to cases involving mass seizure of books) without having an adversary judicial hearing prior to the seizure. The majority opinion also recognizes that on this issue the authorities are split. The majority adopted the reasoning of Bethview Amusement Corp. v. Cahn, 2 Cir. 1969, 416 F.2d 410, which held that an adversary hearing on the issue of obscenity must be had before a movie film can be constitutionally seized.

However, in United States v. Wild, 2nd Cir., 422 F.2d 34 (Oct. 29, 1969), the Second Circuit speaking through its Chief Judge Lumbard, in an opinion rendered subsequent to Bethview, supra, had this to say:

“In conjunction with the specific claim that the items seized should have been suppressed, appellants present a broader argument that seizures in an obscenity case without a prior adversary hearing on the issue of obscenity are unconstitutional under Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), and Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). These cases are inapposite since they involved massive seizures of books under state statutes which authorized warrants for the seizure of obscene materials as a first step in civil proceedings seeking their destruction. The seizures in this case were of instrumentalities and evidence of the crime for which appellants were indicted and lawfully arrested. We do not believe Marcus and Quantity of Books can be read to proscribe the application of the ordinary methods of initiating criminal prosecution to obscenity cases.”

A study of this entire subject causes me to believe that the Wild decision, supra, is the more reasonable and should be the one followed by this Court. If we did so, the prayer for the return of the film and its suppression as evidence would be denied.

But even if the reasoning of Bethview be adopted, the theater should make available a copy of the film for the purpose of the criminal prosecution which should be permitted to proceed. That was the procedure adopted in Tyrone, Inc. v. Wilkinson, 4th Cir. 1969, 410 F.2d 639, which is a case relied upon by the majority opinion in its adoption of the Bethview reasoning. In Tyrone, supra, it was held by the Fourth Circuit that the film must be returned to the theater because it had been seized without a prior adversary hearing but that the criminal prosecution could continue and the theater would have to make available a copy of the seized film for the preparation and trial of the criminal case. If such procedure were followed here, the city prosecution could continue instead of being terminated as required by the majority opinion.

For the foregoing reasons I respectfully dissent.

APPENDIX

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

WILLIAM J. CARROLL, and CARROLL AMUSEMENTS, INC., a Florida corporation,

Plaintiffs,

vs. No. 69-255 Orl. Civ.

CITY OF ORLANDO, a Municipal corporation, et al.,

Defendants.

STIPULATION

Come now the Plaintiffs and Defendants, by and through their undersigned counsel, and stipulate that the following facts and documents may be received in evidence in the above-styled cause for all purposes relevant and material to all matters before the Three-Judge Panel sitting in this case.

1. That WILLIAM J. CARROLL is a resident of Orange County, Florida, and President of CARROLL AMUSEMENTS, INC., a Florida corporation; that Plaintiffs operate the Vogue Theater, having a seating capacity of 625 persons, in Orlando, Florida, showing numerous films of various interest to the general public.

2. That ROBERT CHEWNING is the Chief of Police of Orlando, Florida, and the other named Defendants are the individual elected members of the City Council of said City.

3. That on or about the 30th day of October, 1969, a police officer of the City of Orlando, Florida, delivered his affidavit, a proposed arrest warrant and search warrant to the Judge of the Municipal Court of the City of Orlando at his private law office. After approximately five to ten minutes, during-which said warrant and affidavits were read, said search and arrest warrants were then and there executed by said Judge and returned to said officer, thereby concluding the entire judicial proceedings in connection with the issuance of said warrants. A copy of said officer’s affidavit in support of said warrants and search warrant are attached hereto as Exhibit “A”. No prior adversary hearing on the question of the obscenity of the matter sought to be seized was ever held. Plaintiffs’ film had been exhibited to approximately 3,009 persons in Plaintiffs’ theater at the time it was seized.

4. That on or about 30 October 1969, police officers of the City of Orlando, Florida, confiscated Plaintiffs' film, as alleged in Paragraph 4 of the complaint herein, and refuse to return the same to Plaintiffs who have made demand therefor.

5. That the City of Orlando accomplished the aforesaid confiscation under the authority of Municipal Ordinance No. 43-56-1, of the City of Orlando, and F.S. 847.011, as alleged in paragraph 5 of Plaintiffs’ complaint, copies of which ordinance and statute are attached hereto as Exhibit “B”. The Petitioner, WILLIAM J. CARROLL, was arrested and taken into custody on or about the 30th day of October, 1969, pursuant to the warrant of arrest, which warrant for arrest is attached as Plaintiffs’ Exhibit “C”, and charged with violation of Chapter 847 of the Florida Statutes, all as particularly alleged in paragraph 6 of Plaintiffs’ complaint.

6. That the Plaintiff, WILLIAM J. CARROLL, has sought and been denied, a writ of prohibition in the Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida, seeking to restrain the Municipal Court of the City of Orlando from exercising jurisdiction in this matter on the grounds of its denial of the said WILLIAM J. CARROLL’S constitutional rights under the First and Fourteenth Amendments of the United States Constitution and upon the ground of the denial of his Petition for trial by jury; that the Municipal Court of the City of Orlando has denied the Defendant, WILLIAM J. CARROLL’S motion to quash the search warrant and suppress the evidence, to-wit: the rolls of film taken into custody pursuant to search warrant above described, notwithstanding the said WILLIAM J. CARROLL’s assertion therein that said film was illegally seized by the Police Officers without regard to due process of law as guaranteed by the First and Fourteenth Amendments to the United States Constitution, in that said seizure was carried out without any prior adversary hearing on the question of obscenity, and other matters which are set forth in a copy of the motion to quash the warrant and suppress evidence, which is attached hereto as Exhibit “D”; Defendant’s motion in the municipal court for the return of his property, to-wit, the motion picture film on the grounds the same was illegally confiscated, a copy of which is attached hereto as Exhibit “E”, was denied by the Order of the Court dated December 9, 1969, a copy of which Order is attached hereto as Exhibit “F”; Defendant’s motion for continuance of trial pending resolution of the federal constitutional issues before this federal panel, dated 26 November 1969, was also denied, a copy thereof is attached hereto as Plaintiff’s Exhibit “G”; that the Plaintiff has accordingly exhausted all of his remedies in the Municipal Court in the City of Orlando in an effort to obtain suppression of the illegally seized evidence under doctrines of due process of law guaranteed to him by the Constitution of the United States, and all such efforts have been denied.

7. That on the 9th day of January, 1970, the Plaintiff, WILLIAM J. CARROLL, pleaded not guilty to the charges described hereinabove and prosecution of Plaintiff was commenced. The trial of said cause was recessed on 9 January 1970 prior to the closing of the Prosecution’s case and pending reconvening of said trial court at some future date compatible with the Court’s schedule.

8. That Plaintiff’s film has not been placed in evidence in the Municipal Court and no conviction of Plaintiff has occurred.

9. That each of the parties herein-above stipulate that the Exhibits attached to the stipulation may be taken and considered by the Court in evidence without further proof or production of originals or certified copies.

10. That the Plaintiffs and Defendants stipulate that other than the arrest described hereinabove, there have been no prior or subsequent arrests of the Plaintiff, and that Defendants have not harassed the Plaintiffs, other than as hereinabove described.

Dated this 14th day of January, 1970, at Orlando, Florida.

ROBERT G. PETREE, of BORNSTEIN, PETREE & GLUCKMAN,

125 S. Court Ave., Orlando, Florida, 32801

THOMAS A. CAPEELE,

16 S. Magnolia Ave., Orlando, Florida, 32801

ATTORNEY FOR DEFENDANTS