State v. Denten Corp.

Rodowsky, J., delivered the opinion of the Court. The question presented here is the extent to which First Amendment principles developed in connection with the seizure of presumptively protected, but allegedly obscene, communications material are to be engrafted upon the seizure of such material as evidence of the alleged violation of the criminal provisions of the licensing requirements of Maryland’s motion picture censorship law. On October 18, 1978 Baltimore City police executed a search and seizure warrant at Follies Bookstore, 416 E. Baltimore Street, and seized 32 "peep show” films which ¹⁸⁰ were allegedly being exhibited by the appellees “without having first secured approval thereof and a license therefor” from the Maryland State Board of Censors in violation of Maryland Code (1957, 1978 Repl. Vol.), Art. 66A, § 19 (b).

Appellee, Denten Corporation .("Denten”), the owner of Follies Bookstore, and appellee, Thomas Frank, Denten’s only employee on the premises at the time of the seizures, were each convicted on November 22, 1978 in the District Court of Maryland of 28 charges of violating § 19 (b) on the day the warrant was executed. 1 On appeal to the Criminal Court of Baltimore, appellees’ motions under Maryland Rule 736 to dismiss the charging documents were granted. We issued certiorari on the State’s petition to review the constitutional and procedural issues presented. We shall reverse. Seized at Follies Bookstore were projectors as well as film.

It further appears that seizures of film and projectors were also made in October 1978 from peep show operations in Baltimore City in addition to that of Denten. On November 24, 1978 the Court of Special Appeals, in consolidated and advanced appeals from the dismissal of requests by Denten and others for injunctions, directed the Circuit Court of Báltimore City to issue forthwith permanent injunctions restraining the Commissioner of the Baltimore City Police Department and named officers of the vice squad from seizing projectors if certain conditions were satisfied. Europo Books, Inc. v. Pomerleau, 41 Md. App. 114 , 395 A.2d 1195 , cert. denied sub nom., 400 E. Balto. St., Inc. v. Pomerleau, 284 Md. 743 (1979).

The Denten films seized on October 18, 1978 were destroyed by the police in February, 1979 prior to trial of the appeal from the District Court. It is the State’s position that this destruction resulted from a good faith misunderstanding involving other parties in the Europo Books civil litigation who were abandoning any claim to the return of film seized from them. ¹⁸¹ On July 12, 1979 each appellee filed a motion to suppress and a motion to dismiss, the latter of which included an allegation that Art. 66A, § 19 (b) was being unconstitutionally applied. These motions came on for hearing on October 15, 1979. In oral argument, appellees contended that Art. 66A, title, "Moving Pictures,” is to be equated with an anti-obscenity statute, that "|y]ou can’t prohibit [the material] from being distributed until a judicial determination” of obscenity, and that, where the seized material is the only copy in the possession of the owner, the State must either return the material to the owner or give the owner the opportunity to make an additional copy of it in order to prevent a restraint of distribution prior to the judicial determination.

Testimony was taken, limited to the motions to dismiss, 2 from which the court below found that the 28 seized films involved in the surviving charges were in fact the sole copies in Denten’s possession.' 3 Based on this finding, the charging documents were dismissed. The rationale of the Criminal Court of Baltimore, in its oral opinion, is as follows: And the structure we have here is that there is a charge brought against the Defendant. He is not given the opportunity to be given a copy of this film. He is not allowed to keep the film in his possession.

The State has that option. The State has the option of saying we are charging you for October 18th, 1978 with showing these twenty-eight films. The charges are placed and the film is returned to the operator. And let him show it again.

But, if he ¹⁸² sbpws it again, it’s under the pain of possible prosecution for each and every time he shows it. There’s been no testimony that the State ever offered the Defendants the opportunity to make a copy at State’s expense or their own expense even. It [the film] was immediately seized and that was it. No opportunity for a copy to be made according to what we have in the record.

So, the State certainly had avenues available to it to forego any continued restraint pending judicial proceedings ... if the State were allowed to seize a film, and it’s the only copy that a Defendant has, give to the Defendant no opportunity to get that film back until the adjudication is over, to give the Defendant no opportunity to make a copy of that film, then under the structure of our law just as was the case in Freedman,[ 4 ] we don’t know how long a judicial process will take when finally the Defendants might be vindicated. Before addressing this holding, it is helpful to delineate what is not before us. There was no ruling on the motion to suppress and, for purposes of this appeal only, we shall assume that the warrant was validly issued and executed. Further, no issue is presented that the appellees were prejudiced in the defense of the charges as a result of the destruction by the police of the seized film.

It is the position of the State that it can present a case in chief without introducing the film. Any contention that the appellees may have that the proof on which the State anticipates relying is derivative of the film and should be excluded, either because of illegal seizure or because of the destruction, whether deliberate or inadvertent, is not before us. There is also a dispute between the parties as to whether the appellees ever made any request for a return, or a copy, of the seized film. 4 5 ¹⁸³ However, because of the posture in which this case comes to us, we view that dispute as immaterial. In essence the court below held there to be a constitutional obligation on the State to maintain a procedure for the copying or return of the sole copy of an allegedly unlicensed film seized as evidence of crime and that the sanction for failure to fulfill that obligation is dismissal of the charges.

If the procedure envisioned by the trial court required the State to initiate the mechanism, the State did not do so. If the owner must request the film or a copy and has a right of constitutional dimension to it, that right would not be defeated by even an accidental destruction of the film. Thus, Denten’s motion to dismiss raises the issues of whether there is such a right and, if so, whether dismissal of the charging document is the sanction for its violation. The trial court reached its conclusion with heavy reliance on Freedman v. Maryland, 380 U.S. 51 , 85 S. Ct. 734 , 13 L. Ed. 2d 649 (1965).

In Freedman a conviction under Maryland Code (1957), Art. 66A for exhibiting an unlicensed motion picture was reversed because the Maryland procedural scheme failed "to provide adequate safeguards against undue inhibition of protected expression” which rendered the "requirement of prior submission of films to the Board an invalid previous restraint.” 380 U.S. at 60 , 85 S. Ct. at 740 , 13 L. Ed. 2d at 655 . The Supreme Court held: Applying the settled rule of our cases, we hold that a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. First, the burden pf proving that the film is unprotected expression must rest on the censor.... Second, while the State ¹⁸⁴ may require advance submission of all films, in order to proceed effectively to bar all showings of unprotected films, the requirement cannot be administered in a manner which would lend an effect of finality to the censor’s determination whether a film constitutes protected expression.

The teaching of our cases is that, because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint .... To this end, the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution .... Therefore, the procedure must also assure a prompt final judicial decision, to minimize the deterrent effect on an interim and possibly erroneous denial of a license. [Id. at 58-59, 85 S. Ct. at 738-39 , 13 L. Ed. 2d at 654-55 ].

As a result of Freedman Art. 66A, § 19 was amended by emergency legislation, Maryland Laws (1965), Ch. 598, to provide the procedural safeguards presently found in that section. The constitutionality of the modified statute has been sustained when challenged on a number of grounds, including alleged non-compliance with the standards enunciated in Freedman. Star v. Preller, 352 F. Supp. 530 (D. Md. 1972), vacated and remanded for reconsideration, 413 U.S. 905 , 93 S. Ct. 3054 , 37 L. Ed. 2d 1016 (1973), on remand, 375 F. Supp. 1093 (D. Md.), aff'd mem., 419 U.S. 956 , 95 S. Ct. 217 , 42 L. Ed. 2d 173 (1974); Sanza v. Md. St. Bd. of Censors, 245 Md. 319 , 226 A.2d 317 (1967). See also Mangum v. Md. St. Bd. of Censors, 273 Md. 176 , 328 A.2d 283 (1974). ¹⁸⁵ The issue of seizure of a sole copy of a film as evidence of a violation of Maryland’s censorship law has not previously been presented.

However, the Supreme Court had occasion to discuss the seizure of a sole copy of a motion picture film as evidence of crime in Heller v. New York, 413 U.S. 483 , 93 S. Ct. 2789 , 37 L. Ed. 2d 745 (1973). There the police had seized a film at a commercial movie theatre acting under a warrant issued by a judge who had seen the film. The seizure was for use as evidence of the crime of obscenity with which the manager was charged. The manager contended that no seizure could constitutionally be made of motion picture film without a prior adversary hearing.

On this phase of the case the Supreme Court held as follows: But seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film. If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible. In addition, on a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary proceeding. Otherwise, the film must be returned.11 11 Failure to permit copying of seized material adversely affects First Amendment interests; prompt copying of seized material should be permitted.

If copying is denied, return of the seized material should be required. On the other hand, ¹⁸⁶ violations of Fourth Amendment standards would require that the seized material be excluded from evidence. [413 U.S. at 492-93, 93 S. Ct. at 2794-95 , 37 L. Ed. 2d at 754-55 (citations omitted) (Footnotes 8 through 10 omitted)]. Applying the principles enunciated by the Supreme Court to the instant matter, we think it is beyond argument that the State may not seize the sole copy of a film as evidence of violation of the licensing requirements of Art. 66A and refuse to