Roaden v. Kentucky

PETITIONER:Roaden
RESPONDENT:Kentucky
LOCATION:Allegheny County District Court

DOCKET NO.: 71-1134
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: Kentucky Supreme Court

CITATION: 413 US 496 (1973)
ARGUED: Nov 14, 1972
DECIDED: Jun 25, 1973

ADVOCATES:
Phillip K. Wicker – for petitioner
Robert V. Bullock – for respondent

Facts of the case

Question

Audio Transcription for Oral Argument – November 14, 1972 in Roaden v. Kentucky

Warren E. Burger:

We’ll hear arguments next in number 71-1134, Roaden against Kentucky.

Mr. Wicker.

Phillip K. Wicker:

Mr. Chief Justice and may it please the Court.

The single issue in this case arises out of the conviction of the petitioner in the Circuit Court of Pulaski County, Kentucky following a jury trial for violating Kentucky’s Obscenity Statute which is Kentucky Revised statute, Chapter 436, section 101.

Petitioner was convicted under subsection (2) of that statue which may be found on pages 3 and 4 of the brief for petitioner.

The facts in this case are simple and for the most part undisputed.

On the 9 — September the 29th, 1970, the sheriff of Pulaski County, Kentucky purchased a ticket to Highway 27 Drive-In Theater which was managed by the petitioner.

The sheriff viewed the entire film being exhibited that evening which was entitled Cindy and Donna.

Immediately following the exhibition of the film, the sheriff proceeded to the projection booth of the theater and there arrested the petitioner upon a charge of violating the statue and seized the film.

At the time the arrest was made and the film was seized, there was no warrant in the hands of the sheriff issued by any magistrate.

No magistrate had viewed the film.

There were no descriptive affidavits before, for instance, any magistrate.

Immediately there was no hearing of any kind before a judicial officer, advisory or ex parte to focus on the question of obscenity.

The sheriff upon viewing the film, ex parte and on his own made a determination that the film was obscene and such ex parte determination on his part led to the arrest and seizure of the film.

Warren E. Burger:

Now if on Monday night the sheriff went with the local magistrate, a person authorized to issue warrants and the magistrate observed the film and then on Tuesday morning issued a warrant, would that satisfy your claims?

Phillip K. Wicker:

No, Your Honor.

Warren E. Burger:

You would want a — you would want an adversary proceeding in which you could appear to try to persuade the magistrate that there was probable cause to believe?

Phillip K. Wicker:

That is correct Mr. Chief Justice.

That’s correct.

Warren E. Burger:

You are going to tie out the issue of obscenity in the warrant issuing proceeding?

Phillip K. Wicker:

We, we would ask a meaningful opportunity on the part of the petitioner to be heard to counter the judgment of the local law enforcement officer, that the film was obscene.

William J. Brennan, Jr.:

But would the issue then not be probable cause, but obscenity down on of the film?

Phillip K. Wicker:

I think the issue would be probable obscenity of the film.

William J. Brennan, Jr.:

Probable cause.

Potter Stewart:

I don’t see, to follow up the question of Chief Justice, I don’t see why in your case, may be you are concerned about in hearing the success of the next case, but taking your case alone, I don’t see why you need to contend that the constitution requires an adversary hearing.

You simply I should suppose make the contend that the constitution requires that there can be no seizure except by warrant issued by magistrate, a neutral and detached magistrate on the basis of probable cause.

Yet all through your brief, you talk about of an adversary hearing being required.

Phillip K. Wicker:

Your Honor, we believe the issue of obscenity is so sensitive and this Court had said that it’s separated by only a down and uncertain line and that separation calls for the use of sensitive tools.

We believe that it is required here.

Warren E. Burger:

You think it’s more sensitive than searching a private home?

Phillip K. Wicker:

Yes.

Warren E. Burger:

Under Kentucky Law do you have an adversary proceeding to get a search warrant to search a private home?

Phillip K. Wicker:

No, Mr. Chief Justice.

William J. Brennan, Jr.:

Well Mr. Wicker, I thought, perhaps alone, in Marcus and Quantity of Books both of which involved magazines as I remember, I thought we held the proceedings, you know, it’s a warrant proceeding, had to be one in which there was the determination not a probable cause, but of the obscenity vel non of material before they could be seized, am I wrong about that?

Phillip K. Wicker:

Mr. Chief — Mr. Justice Brennan, my reading of the Marcus and Books case convinces me that adversary hearing pertains to probable obscenity.

You wrote the opinion.

William J. Brennan, Jr.:

That doesn’t prove too much?[Laughter]

Warren E. Burger:

Well then what is there to try, what would be there to try if the determination was a determination vel non of the obscenity.

What do you need a further proceeding for is that by way of appellate review or trial de novo?

Phillip K. Wicker:

There would be no need for any further proceeding if it were determined that there was not probable cause to believe the film to be obscene.

Warren E. Burger:

I am taking the other time, if the magistrate issues the warrant on a showing which must reach the level of determination of obscenity rather than probable cause or probable obscenity.

Phillip K. Wicker:

There would be no need for further trial in that case, Your Honor.

Warren E. Burger:

Then you might be in the trial right the next morning after showing of the film, would you not,would be res judicata of the issue?

Phillip K. Wicker:

No, Your Honor at the time.

On the day following the arrest of the petitioner and the seizure of this film, the sheriff took it to the Grand Jury of Pulaski County and an indictment was returned charging the petitioner with the offense for which he was convicted.

The petitioner three days later pleaded not guilty and the case was set for trail on the 20th of October.

On the 12th of October the petitioner moved to suppress this film as evidence and to dismiss the indictment contending as he does here today, that the film was illegally seized in violation of due process of law because there had been no adversary hearing prior to the seizure.

The motion to suppress and dismiss the indictment was overruled and petitioner’s trial began.

Now petitioner at the trial again objected to admission of the film in evidence and renewed his motion to suppress.

The Trial Court overruled.

The issue was again raised before the Court of Appeals of Kentucky and that court affirmed the conviction on June the 25th 1971 and denied a re-hearing.

At no point, prior to the seizure that the petitioner or anyone in his behalf had an opportunity to contest the judgment of the sheriff that this film was obscene.

So that’s presented the single issue of whether in the absence of a prior adversary hearing, the seizure incident to arrest of allegedly obscene material is a violation of due process of law.

William H. Rehnquist:

Mr. Wicker as I read the opinion of the Kentucky Court of Appeals, the commissioner who wrote the opinion said that, during the trial of the action, you conceded the obscenity of the film, is that a correct statement?

Phillip K. Wicker:

Mr. Justice Rehnquist, we maintain that, that it is not a correct statement of the closing argument and we think that a fair reading of the closing argument will disclose to this Court that was trial strategy and even, even if the Court concluded that there was a concession made in the closing argument, we nevertheless maintain that all material regardless of its eventual characterization as obscene or non-obscene is clothed with the same procedural safeguards until there has been an adversary hearing.

William H. Rehnquist:

But wouldn’t an adversary hearing had been pretty much of a charade in this case, if when you first got your chance to have an adversary hearing and the trial you conceded the obscenity of the film?

Phillip K. Wicker:

We did not concede the obscenity and — but for the protection of material that is not obscene whether this material will turn out to be obscene or not or whether it was conceded that any time during the trial, we don’t think it is important.

We think it was clothed with the same procedural safeguards as non-obscene material until the determination in the adversary hearing.

Petitioner and his contention here relies on the opinions of this Court in Marcus versus Search Warrant properly, A Quantity of Books versus Kansas, and Lee Art Theatre versus Virginia.

And the gist again of petitioner’s contention is that discretion to seize allegedly obscene material cannot be confided to law enforcement officers without some safeguards for the protection of non-obscene material.

Phillip K. Wicker:

And a seizure without a warrant such as occurred in this case, there were no safeguards at all to prevent this question of not obscene film which are protected by the constitution.

And because First Amendment rights are involved here the sheriff of Pulaski County, Kentucky have no discretion to say that a crime have been committed in his presence.

A State is not free, this Court said in Marcus to adopt whatever procedures it pleases for dealing with obscenity without regard to the possible consequences for constitutionally protected speech.

And the line between speech unconditionally guaranteed and speech which may legitimately be punished is finely drawn, it’s dim and uncertain and separation of the legitimate for the illegitimate, calls for the use of sensitive tool.

So here we have an ex parte non-judicial determination of probable obscenity by a law enforcement officer and the thief.

The sheriff acted as judge and in a sense no where was there any procedure designed to focus searching — on the question of obscenity.

This film had shown for two nights prior to the seizure.

There was no emergency or danger to the community which compelled the seizure without at least a warrant or some prior judicial scrutiny.

The test of obscenity as laid down of this Court in the Roth case as so apply then it must be made judicial.

To permit unbridled discretion on law enforcement officers to apply such tests amounts to a vague understanding of this delegation of judicial power.

We believe that Marcus and Books required the court of law to make the determination that there is probable cause to believe the film obscene and this only after a meaning opportunity to be heard in an adversary proceeding.

Police officers in the field are not equipped to apply the test and separate the legitimate from the illegitimate.

While police officers may be property trained experts in the detection and proper identification of the usual paraphernalia of crime, they do not enjoy such a status with respect to the determination of literature and movies.

Warren E. Burger:

Well if a policeman on the beach witnesses conduct which he regards as obscene and offends particular ordinances or statutes, doesn’t he have to make a judgment then and there whether there is probable cause to make an arrest and take the person in the custody?

Phillip K. Wicker:

That’s true in most cases Mr. Chief justice but not in the area of First Amendment rights.

Warren E. Burger:

Well suppose — suppose the man says that he is picketing for something or other but he is engaging in a lurid and obscene exhibition in that process carrying a picket sign at the same time, doesn’t the policeman have to make judgments constantly?

Phillip K. Wicker:

I don’t believe that a police officer in the field is capable of applying Roth test with respect to obscenity.

Warren E. Burger:

Well he doesn’t — a policeman in these circumstances isn’t making any final determination, is he?

Phillip K. Wicker:

But once he makes his determination and seizes the film then there is the danger that non-obscene material has been restrained.

Lewis F. Powell, Jr.:

Mr. Wicker, would it make any difference in your position if your client had had a duplicate film and could have continued to show it to the public?

Phillip K. Wicker:

Mr. Justice Powell, I believe that any requirement that a theater owner – he – two films on him is too burdensome and are made —

Lewis F. Powell, Jr.:

That wasn’t my question.

Assume he did have a duplicate film so that there was no prior restraint and he could have continued to show it, would your position be different?

Phillip K. Wicker:

I still feel that the petitioner’s Fourth Amendment rights were involved and that even the seizure of one film imposes a restraint, whether it’s one film or dozen films.

That particular film was restrained.

Lewis F. Powell, Jr.:

If your client operated a bookstore with 100 books and only one was seized for the purpose of evidence at a trial, I take it your answer would be the same?

Phillip K. Wicker:

My answer would be the same Mr. Justice Powell because we believe the First Amendment makes no reference to quantity that it affords one book, one film, the same protection.

William H. Rehnquist:

Mr. Wicker, returning for a moment to the question I asked you earlier, I call your attention to page 37 of the appendix and what was apparently your argument at the jury, at the bottom of the page 37.

You say in the film which you saw yesterday was all — If the film which you saw yesterday was all, was on trial here, I would not be here.

I would be good enough to tell you at the outset that on behalf of Mr. Roaden.

William H. Rehnquist:

I am not going to get up here and defend the film observed yesterday, you know, the revolting scenes in it or try to argue or persuade you that those scenes were not obscene.

Now I take it that’s what the commissioner were referred to —

Phillip K. Wicker:

Yes sir, it was.

William H. Rehnquist:

— I would certainly be inclined to think that supported his suggestion that you had conceded it?

Phillip K. Wicker:

We maintain Mr. Justice Rehnquist that we did not concede the obscenity of the film that this was trial strategy.

The Jury which heard this — which saw this film and came back to the courtroom was ready to, if protected law has permitted it would have hung this man.

They would have given him the death penalty.

We found that there was no chance of persuading this jury that the film was not obscene.

Warren E. Burger:

Well how is your situation different in this case with that argument than if you had been trying a man, defending a man on a first degree murder charge and you argued to the jury that yes undoubtedly he did kill the victim, but it was an accident and therefore it should be a manslaughter verdict and not a first degree murder verdict.

Is this any different?

If so how is it different?

Phillip K. Wicker:

Your Honor, I don’t believe there is much difference in that the Jury had to make two findings.

First was, is the film obscene and second was is defendant guilty of showing an obscene film and we concentrated only second finding, conviction of the defendant in regard.

But now we didn’t have much chance to convince that jury that this film wasn’t obscene.

Thurgood Marshall:

Doesn’t it make any difference whether it is obscene or not?

Phillip K. Wicker:

No it doesn’t, Mr. Justice Marshall because —

Thurgood Marshall:

Just for my information, was it obscene or not?[Laughter]

Phillip K. Wicker:

Mr. Justice Marshall I did not believe that that film was obscene when compared with other films which have been held not be obscene.

Mr. Chief Justice I request to reserve the remainder of my time for rebuttal.

Warren E. Burger:

Very well Mr. Wicker.

Mr. Bullock.

Robert V. Bullock:

Mr. Chief Justice and members of the Court, may it please the Court.

The question as has been stated that’s before the Court is in the absence of a prior adversary hearing is the seizure incident to arrest of allegedly obscene material, a violation of due process.

My answer of course, is no.

Let me go into if I may a few the facts that may not have been fully brought out before.

On September 28, 1970, the deputy sheriff of Pulaski County observed approximately 30 minutes of the film “Cindy and Donna” from advantage point outside of the theater at a road nearby.

Thereafter he reported to a superior, the sheriff of Pulaski County.

The next evening as was noted, on September 29th, 1970, the sheriff accompanied, in this case by the commonwealth attorney, who is the chief prosecuting officer for that district, paid admission for entrance into the theater for showing of the film.

After viewing of the entire film, the entire film, the sheriff proceeded to the projection booth and arrested the petitioner, Mr. Roaden, who was at that time changing the carton.

I believe it was on the projection theater was upside down.

Robert V. Bullock:

The sheriff seized the film incident to the lawful arrest.

The following day on September 30th, the matter was presented to the Grand Jury who returned the indictment, a trial on the merits of the case was had and a verdict was entered October 21st, 1970.

Now there are certain facts in this case they are somewhat peculiar.

We take issue with my brother Wicker, concerning whether the film’s obscenity has been acknowledged.

Petitioner obviously acknowledged the obscenity of the film as was earlier noted and during the course of appeal through the courts, he is not seriously contended otherwise.

To answer your question Mr. Justice Marshall in our opinion the film was obscene in this case.

The petitioner in this case also moved —

Thurgood Marshall:

While you are talking about film, when is this film returned to him or still you have them?

Robert V. Bullock:

When is it or has it been?

Thurgood Marshall:

Huh, huh.

Robert V. Bullock:

It is in the custody of the Court of Appeals, sir.

Thurgood Marshall:

Until this day.

Robert V. Bullock:

Until this day, yes sir of Kentucky.

Thurgood Marshall:

They do not have an any person (Inaudible) property with that, do you?

Robert V. Bullock:

No sir, because even to this day and this was my next point, petitioner has not moved for the return of the film, his moved for the film which was admittedly obscene to be suppressed in evidence but he has not moved for a return of this film so he might later show it.

Copies of Cindy and Donna.

Thurgood Marshall:

You could do.

You took it.

Robert V. Bullock:

Sir, that is correct, for use it is evidence.

Thurgood Marshall:

Have you offered it back — to give it back to him?

Robert V. Bullock:

I would say that the burden would be upon petitioner to move for its return.

Thurgood Marshall:

Now you answer my question, have you offered to give it back?

Robert V. Bullock:

No sir.

Extreme caution we maintain was used to safeguard against infringement of petitioner’s constitution right.

The chief prosecutor for the district accompanied the sheriff in this case.

At the time of arrest and seizure and presumably he would have the opportunity to advice the sheriff on the probable cause.

As I noted the Grand Jury the next day affirmed, and confirmed the fact that there was probable cause and they returned an indictment and in this case I mean to emphasize the fact that the trial of the case was completed some 22 days after the original arrest and seizure.

There was a determination within that period of time.

We maintain that the seizure of the film was incidental to lawful arrest for crime which was committed in the officer’s presence.

And that the reason for the seizure of this film was for as used as best evidence of the commission of the crime and not for the purposes of suppressing ideas or First Amendment rights.

Robert V. Bullock:

As noted by our Kentucky Court of Appeals this is the way we are differentiating.

We have differentiated the Marcus and Quantity cases which were we interpret to be for the purpose of suppressing and destroying evidence.

I might also add with the Kentucky statute specifically permit a peace officer to arrest without a warrant for a misdemeanor that is committed in his presence.

And also in answer to a earlier question I would say there are many instances a police officer must make a quick judgment concerning an obscene situation and the peace officers in most instances and all instances are law abiding officers are sworn to a particular duty.

The material here which was a film differs from books and pamphlets.

William J. Brennan, Jr.:

Well now Mr. Bullock?

Robert V. Bullock:

Yes sir.

William J. Brennan, Jr.:

In the Marcus case, the police officer there involved went to the various newsstands and picked up a copy of each of the magazines about it.

Robert V. Bullock:

Yes sir.

William J. Brennan, Jr.:

And then he went before a magistrate on sworn complaints in which he stated that each of those places, each of the news dealers, and I am quoting, kept for the purpose of sale of obscene publications.”

And then got the –on the basis of that the Circuit Judge issued the six warrants which weren’t executed.

Robert V. Bullock:

Yes sir.

William J. Brennan, Jr.:

And we held with that procedure did not comport with constitutional due process and liability limit implications involved, did we not?

Robert V. Bullock:

Yes sir.

William J. Brennan, Jr.:

Well how does that procedure differ and how is the procedure here differ any from that was done there.

You say this was incident to a lawful arrest?

Robert V. Bullock:

Yes sir.

William J. Brennan, Jr.:

Well, this was a seizure and similarly nobody was arrested at that time because that was a, as you have pointed out is (Inaudible)

Robert V. Bullock:

Right.

William J. Brennan, Jr.:

Well other than that how is only difference between two procedures?

Why does the seizure of the operator make that any different from due process in First Amendment context?

Robert V. Bullock:

Well, I think there might be two answers to that sir.

First the case we’re involved in here was a crime that was committed in the officer’s presence and second we’re dealing with a film as opposed to a book.

There is a big difference in a film.

Films can be altered quickly.

They can be changed, certain objectionable portions can be quickly taken out.

William J. Brennan, Jr.:

Well our point is not whether statement have a procedure to seize a film and prevent its being altered. Our question is, isn’t it, whether or not the statement have a procedure before seizure of the film itself, without first determining its obscenity as the question.

Robert V. Bullock:

Yes.

I am not surely understand your question sir.

William J. Brennan, Jr.:

Well, what we concerned with here is whether you can issue a warrant as was done in this case, wasn’t it, on probable cause.

Robert V. Bullock:

There was no warrant, no sir.

William J. Brennan, Jr.:

Now what, just an arrest?

Robert V. Bullock:

There was an arrest in the officer’s presence.

William J. Brennan, Jr.:

And the question is whether you can do that.

Robert V. Bullock:

Yes sir.

William J. Brennan, Jr.:

Without having a determination of the obscenity vel non of a motion picture?

Robert V. Bullock:

And we maintained that you do not have to have the prior adversary hearing or determination vel non ahead of time.

What you need is a determination of probable cause.

In this case the sheriff made that determination.

William J. Brennan, Jr.:

And this is on the grounds of difference between films and magazine?

Robert V. Bullock:

That is a part of, yes sir.

William J. Brennan, Jr.:

I gather that there are good many cases that have held the other way?

Robert V. Bullock:

Yes sir.

William J. Brennan, Jr.:

Most of them I gather?

Robert V. Bullock:

Well, it is — there has been a number of cases in the lower court, specially the District Courts that have held, you could have seizure and then they been sometimes overturned, a number of state courts the same way, they have been overturned but there is still some cases left.

Byron R. White:

Is Marcus and A Quantity of Books didn’t hold it that you could not seize one copy for the use as evidence, did they?

Robert V. Bullock:

Not to my recollection, no sir.

Byron R. White:

This held but you couldn’t take a circulation that entire series of publication?

Robert V. Bullock:

That’s correct, yes sir.

Byron R. White:

And of course, taking one copy of circulation of a movie might take the entire thing or the entire showing out of circulation?

Robert V. Bullock:

Well as we maintain Mr. Justice White in our brief, we feel that it’s not unreasonable to require under certain circumstances a second copy to be kept.

If there is a probability or a possibility that this is an obscene movie.

Byron R. White:

If you are going to have a hearing about obscenity, you could have give them subpoena to bring it to that particular hearing and otherwise leave it in circulation.

Is that’s all your — if all you are really trying to do is to have the evidence available at the hearing.

Unless you thought there were some, you think there is really some substance in the alteration theory?

Robert V. Bullock:

I believe there is substance in the alteration theory, yes sir.

I also believe that there is some substance in the difficulty in which we face where a operator may remove that film and send it to another state very quickly because most of these films are on a schedule of —

Byron R. White:

You, you wouldn’t — if there were two films, if the operator had two films, you wouldn’t argue that the state can seize both copies in the case of Marcus and Quantity, would you?

Robert V. Bullock:

No, sir.

One film for evidentiary purposes only.

Byron R. White:

That’s the question.

Robert V. Bullock:

That’s the question.

William J. Brennan, Jr.:

And if that’s the only print —

Robert V. Bullock:

Sir?

William J. Brennan, Jr.:

If that is the only print that’s supplied to the exhibitor.

Robert V. Bullock:

If that were the only print, then in that case I would suggest a motion whereby maybe some security could be given that the film would be returned in its original shape for use in the trial, could be — some limitations could be put on it.

William J. Brennan, Jr.:

Do we know here whether there are more than one print, I guess, Mr. Justice Powell asked you that.

Robert V. Bullock:

I can state that outside the record to my knowledge, if it please the Court, it’s showing here in town.

William J. Brennan, Jr.:

In Washington?

Robert V. Bullock:

In Washington, yes sir.

William J. Brennan, Jr.:

Name the theater.[Laughter]

Robert V. Bullock:

It’s my understanding that’s showing, let me put it that way.

Thurgood Marshall:

Well, is that (Inaudible) or anything?

Robert V. Bullock:

I haven’t seen it sir in Washington, I couldn’t tell you.

It could be contented that there could be other evidence such as oral statements admitted to show the obscenity of a particular film.

Warren E. Burger:

But would it be wrong with having the magistrate and the sheriff and the prosecutor go and see the movie on Monday, issue the warrant on Tuesday and go out and seize it then, if a non-adversary proceeding would satisfy Kentucky law and the constitution, a number of ifs in there?

Robert V. Bullock:

Yes, the Kentucky law though says that it is proper to seize the evidence, incidental to a lawful arrest and there was a proper arrest and it’s my understanding the question before the Court is whether there is a need for a prior adversary hearing and it’s of course, our contention that it is not necessary.

Potter Stewart:

Even if there isn’t a need for a prior adversary hearing, you would lose if the constitution requires a determination by a neutral and detached magistrate, would you not, if there is just simply a requirement of a warrant?

Robert V. Bullock:

Accept that in this case there was not just a sheriff.

There was also the chief prosecuting attorney for that district was present.

Potter Stewart:

Yes, but he is not a neutral and detached magistrate, is he?

Robert V. Bullock:

He is going to be the one that charged with bringing the prosecution obviously since the monkey would be his back so to speak, he would have reason to make certain that there is probable cause before making —

Potter Stewart:

Well, he is a prosecutor?

Robert V. Bullock:

Yes, he is prosecutor.

Thurgood Marshall:

Why not use (Inaudible) search warrant while you’re at it?

Robert V. Bullock:

Couldn’t possibly do that, Your Honor?

Thurgood Marshall:

Are you kidding?

Robert V. Bullock:

No, I thought you asked for a search warrant is concerned, I misunderstood you?

Thurgood Marshall:

Well, what — is there anything in the record that show any expertise on the part of either these two men in the field of what is and what is not obscenity?

Robert V. Bullock:

The record Mr. Justice Marshall shows that the sheriff was — had been a sheriff for some ten years.

Robert V. Bullock:

It shows that he was familiar with the statute, in fact, as he quoted it during the trial on the issue, he knew what the statute was and I think a man of common intelligence can determine what is prurient.

If this material taken as a whole appeals to prurient interest and is without redeeming social value, this is not a determination, a final determination on the matter.

It is a determination of a probable cause.

Thurgood Marshall:

It is the final determination as to whether or not the film is going to be seized without a search warrant?

Robert V. Bullock:

That’s correct.

Thurgood Marshall:

So that’s final.

Robert V. Bullock:

Yes, sir.

But of course, if it is not obscene —

Thurgood Marshall:

He has absolutely no expertise over and above any other citizen in this County in the field of obscenity?

Robert V. Bullock:

Yes of course, if it is not obscene, it would be returned.

Thurgood Marshall:

My question is, does he has any expertise in the field of obscenity over and beyond every other citizen in the county?

Robert V. Bullock:

There is no showing in the record that he has any expertise other than being —

Thurgood Marshall:

But then how did he know that a crime was being committed?

Robert V. Bullock:

Because he could observe that the situation that is occurring and come to the conclusion that it did appeal to prurient interest.

Thurgood Marshall:

Then under the law of Kentucky, I imagine anybody in the field, that could could make a citizen’s arrest?

Robert V. Bullock:

Not for misdemeanor, no sir.

Thurgood Marshall:

You don’t think so?

Robert V. Bullock:

No sir.

William H. Rehnquist:

(Inaudible) always had any particular expertise when they returned a verdict of guilty?

Robert V. Bullock:

I was going to mention that, sir.

What appeared to me that if a jury can make a determination that a particular film is obscene, this would likewise be true for a peace officer, at least as far as probable cause is concerned.

Warren E. Burger:

This wouldn’t — would it not follow is a matter of course that if lay jurors can do it, a peace officer can do it on the lesser standard of probable cause whereas the lay juror has got to find it beyond a reasonable doubt?

Robert V. Bullock:

Yes sir, that would be my point.

William J. Brennan, Jr.:

Was this a drive-in?

Robert V. Bullock:

Yes sir, it was a drive-in which without getting to the rape or robbery case, at least the deputy sheriff was to the side of the movie theater and was observing that from a post outside of the —

William J. Brennan, Jr.:

Meaning a bridge or something?

Robert V. Bullock:

No, it was a little street, a road to the side of the drive-in theater.

William J. Brennan, Jr.:

And he could see it from the street.

Robert V. Bullock:

He could see the nude scenes that were going on from that area, yes sir.

I might also point out the difference between the films and the books is that you can purchase books for use in evidence whereas in the case of a film being shown in a drive-in theater, you can’t very easily purchase that for use in evidence.

Robert V. Bullock:

And as we say the film is a best evidence and it will provide a fair basis for a decision of the court not only for the prosecution, but also for the defense because obviously if we’re talking about certain isolated segments, this is not enough to satisfy the problems or the definition involved in Roth.

So the film itself taken as a whole must be obtained in order to make a decision in this case.

I would also point out that the ideas that are conveyed in Cindy and Donna are probably not of such a nature that it would be a tremendous abridgment of First Amendment rights.

Cindy and Donna is basically a business proposition.

It’s not not like a book like, say Mein Kampf or Story of Lenin or something that might be of necessity that the information immediately reach the public.

Cindy–

William J. Brennan, Jr.:

May I ask you a question?

Robert V. Bullock:

Yes sir.

William J. Brennan, Jr.:

Is the officer on that side of street just by happenstance or he goes there for purpose?

Robert V. Bullock:

No, sir.

Well, I am not sure, it’s in the record.

I think he was — yes, he was told by the sheriff to keep an eye on the place.

William J. Brennan, Jr.:

On this very place?

Robert V. Bullock:

On this place, yes sir.

It had been shown for two days prior to the seizure.

So we are saying that absent a pattern of harassment or an attempt to suppress ideas, a seizure of obscene material incident to a lawful arrest is beneficial to judge — justice, both for the prosecution and the defense.

Since this Court has stated in Roth and later in Reidel that obscenity is not protected by the First Amendment, there is no basis for placing hurdles in front of law enforcement officers in the prosecution of their duties.

This film as we say was admittedly obscene, it’s not allegedly obscene.

It is an obscene film requiring an adversary hearing as suggested by petitioner, would put law enforcement officials on a untenable position of trying to enforce laws while which this Court and the Commonwealth of Kentucky say are lawful, while putting obstacles and the best means — for the best means of doing so in the way of the law enforcement officers.

In this respect, I think it’s important that we enforce white collar crime, laws against white collar crime just as much as we do crimes of violence.

Obviously, if you can get by with white collar crimes such as obscenity or consumer protection or environmental laws, this breaks down a respect for the judiciary and the law enforcement officials if they can see this going on here and the other man who does a crime of violence is immediately placed in custody and tried.

As we noted earlier the petitioner did not move for return of his material.

We feel that it can be assumed that his purpose for this motion which he made before the Court was for the purpose of suppression of an obscene film to avoid prosecution.

There was a speedy review of the action taken by taking the matter before the Grand Jury of Pulaski County the next day.

And Your Honor, as it please the Court, I would like to state that in an attempt not to overstate my case, in my brief I may have understated my case on a particular point.

On page 11, I stated although a failure to indict by Grand Jury would not have assured petitioner of his release or the release of his film, the fact that it went before the Grand Jury was showing a good faith.

I would like to correct any ambiguity there by saying that pursuant to the Kentucky Rules of Criminal Procedure 5.22, if a defendant is not indicted by Grand Jury, he must be released, however, a subsequent Grand Jury could later indict it.

This is Marcus v. Bradley, 385 S.W. 2nd 165.

A failure of the Grand Jury in this case to indict would have resulted in the release of petitioner, immediate release and he would have remained free absent a subsequent Grand Jury indictment and presumably his film would have been released with him.

I might add that if his film was not released, he could have made a motion to the court for its release and if the lower court refused to do a it a writ mandamus would be a proper remedy before Court of Appeals.

Robert V. Bullock:

This was indicated in the case of Johnson versus Commonwealth, 475 S.W. 2nd 893 which was decided subsequent to the case before this Court.

There was a speedy trial in this case,the 22 days.

This was done in order to zealously guard petitioner’s rights.

This court recently in U.S. versus 37 Photographs held that where there were seizure of allegedly obscene material by custom officials, there would not be an undue hardship if the forfeiture proceedings were commenced within 14 days and completed it within 60 days of their commencement.

This would allow a total of 74 days from seizure to decision.

Now in our present case before our Kentucky Court of Appeals, there was seizure on September 29th, 1970 and indictment the following day and the trial was concluded on October 21st, 1970.

This was some 22 days after the arrest and seizure.

And I submit to the Court that this is significantly less than the 74 days that was indicated in the 37 photographs case.

Warren E. Burger:

Is there any evidence in this record as to what it cost to rent this film and how long it would have taken him to get a substitute film?

Robert V. Bullock:

No, sir, there is no showing in the record.

I assume it could be done fairly easily and without a whole lot of cost.

Pulaski County, Kentucky is not like New York City or some of the big cities.

Pulaski County, Kentucky is essentially a rural area. Requiring an adversary hearing would in my estimation, penalize rural areas.

For instance, in Pulaski County, there is one Circuit Judge who kind of covers two counties.

Now there are other lesser judges but our main judge is the Circuit Judge and he covers two counties.

William J. Brennan, Jr.:

Who issues warrant?

Robert V. Bullock:

Sir.

William J. Brennan, Jr.:

Who issues warrant?

Robert V. Bullock:

Magistrates, I believe can issue.

William J. Brennan, Jr.:

And you have.

Robert V. Bullock:

We have County Judge too.

William J. Brennan, Jr.:

Yes, but I mean you have available magistrates, so if warrant had been required here I gather that had been an available magistrate (Inaudible)

Robert V. Bullock:

In a warrant situation, I would suppose that is true.

There are not, however, judges that are quickly available to be able to go and have a prior adversary hearing before this film which we submit is fugitive in nature and can be shifted to another state and the lost, the evidence lost to the commission of the crime.

In conclusion, Your Honor, we submit that the commonwealth has used careful procedures to protect petitioner’s constitutional rights.

We’re basically talking about a Fourth Amendment case and not necessarily a First Amendment case.

The prior adversary hearing situation which has been interpreted by many of the courts is simply not a workable solution, it won’t work.

What is needed is a firm determination by this court that a peace officer can make arrest and seizure of the film, when that arrest and seizure is for the purposes of using in evidence, the material.

For these reasons, if it please the Court, we respectfully request that this Court affirm the holding of the Kentucky Court of Appeals.

Thank you, Your Honor.

Warren E. Burger:

Thank you Mr. Bullock, Mr. Wicker, do you have anything further?

Phillip K. Wicker:

Yes, Your Honor.

As to the expertise of the sheriff of Pulaski County, in this case, if a comparison is made of the sheriff’s reading of the Roth definition of obscenity which he copied from the Kentucky Statute is shown on page 17 of the appendix.

A comparison of that what statute actually says as shown on Page 3 of the petitioner’s brief preferably illustrates that the sheriff did not even read the definition of obscenity much less comprehend it.

(Inaudible) to the average person applying to a temporary standard when the statute says applying contemporary community standards.

Now we make the point that the petitioner also contends that his Fourth Amendment rights have been violated in this case.

The prosecution would distinguish the Books and Marcus cases by saying that in those cases large quantities of books were seized while in this case only one copy of a film was seized.

We say that this distinction is not likely significant because a single film is equal when disseminated in parts to a large quantity of books, it’s equal to the entire stock of the newsdealer or to the entire inventory of the the newsdealer.

Warren E. Burger:

That’s the state’s position here that one exhibition reaches many, many people, are you supporting the state’s position on that score?

Phillip K. Wicker:

The restrained imposed upon us exhibition deprives many people of an opportunity to see the film, to receive the expression and the ideas contained therein.

Warren E. Burger:

But if it’s obscenity do you concede that it — they are not entitled to exhibit it and people are not entitled to receive it, if it is obscenity?

Phillip K. Wicker:

Again, Your Honor, the determination is so sensitive under the Roth test that there is no other way, to determine obscenity.

I say that it can’t be delegated to local police officers in the field and it’s not any answer to say that just one copy of the film was seized.

The effect of the seizure, of one seizure and one prosecution can perceive ripple effect from its source and we say that the First Amendment affords national protection at a scope that extends beyond Kentucky.

Another point made with the prosecution is they apprehend and if an adversary hearing is afforded that the film might be shift out of the jurisdiction, edited or altered before the adversary hearing to be concluded and they say that the adversary hearing just won’t work.

We might point out that these figures can be made by protective orders of the magistrate, subject to the sanction of contempt.

I’ll give example, in Texas the legislature has expressly authorized protective orders to prevent a film from moving from the jurisdiction or alteration and a knowing violation of these orders is made a separate offense.

And courts have consistently indicated that compact designed to subvert or bypass administration of justice will not be permitted merely because obscenity litigation may involve the sensitive procedural tools of the First Amendment.

The report of the President’s Commission on obscenity and points – arbitrarily points out that legislation can be drafted to require an exhibitor or distributor to make a film available for judicial hearing by permitting it’s exhibition pending that hearing.

The adoption of such legislation consists of a local practice would appear warranted and jurisdiction to which it may continue to seek to prosecute film exhibitors for adults, contrary to the commission’s recommendation.

The commission proposed a model declaratory judgment and injunction statute.

It provides whenever material is being disseminated in violation of this obscenity laws, the state may bring several action against the disseminators in order to obtain a declaration that the dissemination was prohibited.

We say that the requirement of an adversary hearing will work.

Application to be made for preliminary injunction after notice to the adverse party an opportunity for him to be heard.

The court could grant an ex parte restraining order to control any real threat of editing.

The order can direct the exhibitor to keep and maintain the film within the jurisdiction and keep it in intact and order — and enjoin the exhibitor from altering any part of it and it can punish violations of those orders by contempt.

There is nothing we say to prevent diligent state prosecutor from executing adversary proceedings before judicial officer through notice to the distributor and a subpoena duces tecum directed to advert the (Inaudible) challenged publication and following judicial determination of obscenity the State authorities may seize and prosecute if the publications and materials are put on sale and this is very clear where a state procedure is (Inaudible).

The prosecution contends that it is significant that the petitioner did not move or return of the film, so that he might continue to show it, at the theater and we did not think this is significant.

Clearly the prosecution must proceed about the injunctive process or in some combination of manner which will afford an opportunity for the prior adversary hearing.

It’s not up to the defendant to seek return of the film.

Phillip K. Wicker:

At the Trial Court hearing it sustained his motion to suppress return of the film necessarily would violate.

The burden is on the prosecution to show the (Inaudible) to keep it and return of the film in any event is not an adequate remedy because it, there is not the restrain which is already occurred up until the time the film is ordered to return.

The Quantity of Books case I believe makes it clear that the adversary hearing must precede seizure in order to protect the right to circulate non-obscene material and again the prosecution’s argument has not taken into account the defendant’s Fourth Amendment rights to be free from unreasonable searches and seizures for which the only adequate redress is exclusion of the evidence.

Exclusion of the evidence were compelled respect for the constitutional guarantee and the only effective way as set this Court Mapp versus Ohio by removing the incentive to disregard it.

And even if the film was returned officers are still going on keep on seizing films knowing that if return is ordered, the provision then a copy be made available ultimately they still get the evidence.

The return of the film proposal secures to the state the fruits of the poisonous tree.

It was illegal seizure that is started the process of — which led to obtaining the evidence.

My time is up, Your Honor.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.