429 F2d 982 Maizels v. Van Hoomissen
429 F.2d 982
Sol D. MAIZELS, Appellee,
George VAN HOOMISSEN, District Attorney for Multnomah
County, Oregon, Appellant.
United States Court of Appeals, Ninth Circuit.
Sept. 14, 1970.
Al J. Laue (argued), Asst. Atty. Gen., Lee Johnson, Atty. Gen., Jacob B. Tanzer, Sol. Gen., Salem, Or., for appellant.
Paul R. Meyer (argued) and Marvin S. Nepom (argued), of Kobin & Meyer, Portland, Or., for appellee.
Before CHAMBERS and MERRILL, Circuit Judges, and SWEIGERT, District Judge.1
Upon the authority of Demich, Inc. v. Ferdon, 426 F.2d 643 (9th Cir. 1970), the order for the return of the seized films is affirmed.
Since acquiescence with our decision can, we feel, be assumed until the contrary appears, the case is remanded with instructions that the injunction against future seizures be vacated.
CHAMBERS, Circuit Judge (concurring):
This is more dirty pictures business. Obviously the police cannot be permitted to proceed in terrorem. But it would seem that a magistrate could invent a hearing to show cause why a search warrant should not issue. Then the magistrate could look at the film before issuing his warrant. Also, courts must have the necessary injunctive powers to prevent destruction or disappearance of the film by hit and run producers, assuming that a prosecution is contemplated.
Honorable William T. Sweigert, United States District Judge for the Northern District of California, sitting by designation