State v. Eakes

¶1(dissenting).

¶2The seizure of the films in this case cannot be upheld under the rationale of Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, nor under the plain view doctrine as set forth in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067. Chimeldoes not apply because the films were not within the area within appellant’s immediate control, insofar as that area has been defined to include the area within which a person might destroy evidence or seize a weapon. Harrisdoes not apply because there was no inadvertent view of the films by the officers at a place, i. e., the projection booth, where they had a right to be. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. There were no exigent circumstances which would have justified a seizure without a search warrant. The officers had seen the films earlier in the afternoon. There was no evidence whatsoever to indicate that the films were about to be secreted or destroyed. While it would have taken the officers more time to prepare an affidavit adequate to support a search warrant than it did for them to obtain the warrant of arrest, mere personal inconvenience has never been held to be enough to dispense with the requirement of obtaining a search warrant. Of course, I do not question the officers’ good faith in relying upon what they considered to be a valid statute, SDCL 22-24-21, purporting to give them the authority to seize the films.

¶3Had the officers obtained a search warrant, then I would agree with the majority that no adversary hearing would have been required prior to a seizure of the films. United States v. *267Young, 9 Cir., 465 F.2d 1096. In any event, we shall soon have further guidelines on this question. See People v. Heller, 29 N.Y.2d 319, 327 N.Y.2d 628, 277 N.E.2d 651, cert. granted, 406 U.S. 916, 92 S.Ct. 1765, 32 L.Ed.2d 115; Roaden v. Kentucky, 473 S.W.2d 814, cert. granted, 406 U.S. 905, 92 S.Ct. 1609, 31 L.Ed.2d 815.

¶4Although my view concerning the seizure of the films would necessitate a reversal of the conviction, I feel duty bound to comment upon other issues discussed in the majority opinion. First, although I agree generally with the definition of hard-core pornography adopted by the majority opinion, I cannot agree that the films in question fall within that definition.* Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793, 804 (Stewart J., concurring). Although the majority opinion has no hesitation in branding the films as hard-core pornography, it does not deign to describe that which it condemns. The following quotation from Huffman v. United States, D.C.Cir., 470 F.2d 386, is instructive:

“There is a tendency to dispose of cases like these with conclusory condemnations, often based on overdrawn descriptions. If we read the Supreme Court decisions aright, what is required is a factual description of contents and an analysis of what is being presented rather than what is being suggested.

“Judges concerned with the many elements comprised in our free, democratic society must take care lest they decide these cases on the basis simply of their indignation and disgust with the kind of trash presented. The First Amendment extends to trash, if it stops short of obscenity, not because of its merit but because of the dangers to the free spirit generated by a system of censorship and authority delegated to censoring officials.” 470 F.2d 386, 396.

¶5*268To hold that the films in question are not hard-core pornography is not to pen a paean to obscenity. I found the films to be tedious, tawdry assaults upon both the spirit and the intellect. Although they might possibly have some appeal to a sweaty-palmed adolescent, one would have to be possessed of a panglossian ingenuousness to find any redeeming social value in either of the films.

¶6Although the films might well be held to meet two of the Roth-Memoirs tests, i. e., an appeal to prurient interest in sex and an utter lack of redeeming social value, the three tests must coalesce and each of the three criteria must be applied independently. Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1. In this respect it is my opinion that the state failed to introduce sufficient evidence to support a finding that the films were patently offensive because they affronted contemporary community standards relating to the description or representation of sexual matters. Had I viewed these films five years ago, I might very well have concluded that they went beyond the pale of contemporary community standards relating to descriptions of sexual matters. From a rather desultory viewing of the offerings at the local theaters over the past two years, however, and from a reading of current literature and criticism, I am convinced that that which once would have shocked the community is now regarded as passe'.

¶7The standard by which allegedly obscene materials are to be judged, then, is constantly self-correcting: as the standards of the community change with respect to acceptable descriptions of sexual matters, that which was once proscribed may find itself to be constitutionally protected. Hard-core pornography has never fallen within the realm of this protection, however, and if we are permitted to indulge in our subjective preferences, it will never be so protected. If the films could truly be categorized as hard-core pornography, then they would speak for themselves and no expert opinion would be necessary on the question of contemporary community standards. United States v. Wild, 2 Cir., 422 F.2d 34, cert. den. 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152; United States v. Young, supra.

¶8*269I would hold that the state is required to submit evidence concerning contemporary community standards relating to the description or representation of sexual matters in all obscenity prosecutions except those in which the material in question is clearly hard-core .pornography. While a jury and a judge may accurately reflect contemporary community standards regarding hard-core pornography, I am not prepared to say that in this day of rapidly changing standards the average jury is sufficiently well informed regarding these matters in cases falling short of hard-core pornography to be able to make the judgment that the material in question is obscene when weighed against the three constitutionally required standards enunciated in the Roth-Memoirs cases.

¶9From the viewpoint of an appellate court, it would have been better had this case been tried to a jury inasmuch as the issues would have been more sharply framed by the court’s instructions. It is difficult to tell from the record whether the trial court in fact applied the Roth-Memoirs standards. Certainly the trial court was unduly restrictive in ruling upon appellant’s proffered testimony.

¶10Nothing said in this dissent should be construed as in any way indicating that the films in question could not, under proper instructions, based upon competent evidence, be held to be obscene. Our duty, however, is to apply the constitutional standards as proclaimed by the United States Supreme Court and not to base our decision upon our purely subjective view's of what is or is not obscene. Accordingly, if there were no question as to the propriety of the seizure of the films, I would reverse and remand for a retrial in accordance with the procedures I have discussed above.