The opinion of the court was delivered by: DUMBAULD
Plaintiff holds United States and Canadian rights for distribution of an Argentine motion picture film entitled "The Female", of which it owns 70 prints. In general 25 or more are in simultaneous use, but about once a year all 70 would be needed. This action is brought under the "Ku Klux Act" of April 20, 1871, 17 Stat. 13, 42 U.S.C. § 1983,
to recover five prints seized without a warrant of any kind by law enforcement authorities in Allegheny County and Westmoreland County.
Plaintiff invokes the First, Fourth, and Fourteenth Amendments of the Constitution. It is alleged that plaintiff has been deprived of the use of its property, and also that the acts of the defendants diminish bookings of the film both locally and elsewhere. Plaintiff's president testified that additional prints could be made without great difficulty or expense, and that the principal grievance felt was the impact upon business of the uncertainty created by the attitude of the law enforcement officers. Nonetheless, there is proof of some loss of business and plaintiff is indeed being deprived of the use of its property by the seizure.
It is basic doctrine that moving pictures, notwithstanding the graphic and direct nature of the medium, are entitled to the same protection which the First Amendment
accords to other forms of freedom of speech and expression, Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502, 72 S. Ct. 777, 96 L. Ed. 1098 (1952); but that obscenity is not entitled to such constitutional protection, Roth v. United States, 354 U.S. 476, 485, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). But how is it to be determined whether a particular exhibition of a film constitutes obscenity? Prior restraint or censorship upon protected freedom of speech has been prohibited since before Blackstone's time. Dumbauld, The Bill of Rights and What It Means Today (1957) 123. When motion pictures were accorded protection as free speech they received the benefit of that principle. Cf. Times Film Corp. v. Chicago, 365 U.S. 43, 49, 81 S. Ct. 391, 5 L. Ed. 2d 403 (1961), where the exhibitors outfoxed themselves by relying on the "one bite" principle above without developing an adequate record in the case involved. The accepted rule is that the statutory scheme must make provision for a prompt, adversary judicial proceeding to determine whether the film is or is not obscene. Freedman v. Maryland, 380 U.S. 51, 58-59, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965). So far as we are aware, Pennsylvania has no discriminatingly drawn statute which meets these requirements, and which would authorize in rem seizures as a "clean-up" measure. Smith v. Crumlish, 207 Pa.Super. 516, 524, 218 A.2d 596 (1966); Commonwealth v. Guild Theatre, 432 Pa. 378, 382, 248 A.2d 45 (1968). The seizures in the case at bar therefore can not be upheld on this basis. In fact there is little evidence in the record to show that such a basis was relied on by defendants. In response to leading questions by plaintiff's counsel some of the theatre managers said that the raiding officers said that they were "confiscating" the film. In the case of the Westmoreland county theatre, the manager admitted that the officers might have said they were holding the film as evidence.
The second theory, and that on which defendants in fact rely, is that the seizures were for the purpose of impounding evidence and were made as an incident to lawful arrests without warrant for a crime committed in the presence of the arresting officers. We now examine this contention.
It has long been the rule that things connected with the crime, as its fruits or means or instrumentalities of its commission or weapons or means to facilitate escape of the malefactor, may be seized when found at the time of a valid arrest on the person of the defendant or on the immediate premises where the arrest takes place. Dumbauld, The Bill of Rights and What It Means Today (1957) 73. A recent decision, Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 300, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967), overruling Gouled v. United States, 255 U.S. 298, 309-311, 41 S. Ct. 261, 65 L. Ed. 647 (1921), permits seizure of mere evidence, as distinguished from instrumentalities of commision of crime. Even under the old rule, however, we think the film would qualify as a suitable object for seizure, if a valid arrest of the theatre managers or projectionists was made.
The right of peace officers to arrest without a warrant when an offense is committed in their presence is well established. Com. v. Bosurgi, 411 Pa. 56, 66-68, 190 A.2d 304 (1963); Com. v. Laniewski, 427 Pa. 455, 459, 235 A.2d 136 (1967); United States v. Martin, 386 F.2d 213 (C.A. 3, 1967).
But whether or not an offense has been committed in the presence of an officer depends upon what facts are necessary to constitute the offense. An officer who witnesses fact A can not say that a crime has been committed in his presence if the crime requires facts B and C, not witnessed by the officers, in order to constitute the offense.
To constitute obscenity, under federal standards laid down by the Supreme Court of the United States, it is necessary, inter alia, that "the dominant theme of the material taken as a whole appeals to prurient interest." Roth v. United States, 354 U.S. 476, 489, 77 S. Ct. 1304, 1311, 1 L. Ed. 2d 1498 (1957). Reliance upon isolated episodes or excerpts will not suffice. Therefore an officer making an arrest without a warrant must have viewed the entire film before the offense (and the arrest and seizure incident thereto) can be validly established.
In the case of the Westmoreland County seizure, Assistant County Detective George H. Rue testified that on March 13, 1969, in company with others, he was present as a paying customer who had duly obtained a ticket and entered the premises in the normal manner to see the show. He viewed the entire film which began at 9:05 and ended at 10:50.
In the Westmoreland County case, therefore, we find a valid arrest and seizure of the film for use as evidence
at the trial. The Pennsylvania statutes conform closely to the requirements of the United States Supreme Court and are therefore not void on their face. Smith v. Crumlish, supra, at 520, 218 A.2d 596. There is therefore no reason why this prosecution in Westmoreland County should not continue. It is a normal and legitimate criminal proceeding, and will present in orderly fashion in a single litigation an opportunity for appropriate judicial determination of the question as to the obscenity vel non of the film, and the guilt or innocence of wrongdoing of the exhibitors thereof.
The general rules therefore apply, that equity will not enjoin criminal proceedings, In re Sawyer, 124 U.S. 200, 210-211, 8 S. Ct. 482, 31 L. Ed. 402 (1888), and that federal courts should be slow to presume that State courts will not respect federally created constitutional rights. Atlantic Freight Lines v. Pa. P.U.C., 109 F. Supp. 385, 387 (W.D.Pa.1952); Holiday Inns of America, Inc. v. Holiday House, Inc., 279 F. Supp. 648, 650 (W.D.Pa.1968); Stevens v. Frick, 259 F. Supp. 654, 657 (S.D.N.Y.1966), aff'd 372 F.2d 378 (C.A. 2, 1967), c.d. 387 U.S. 920, 87 S. Ct. 2034, 18 L. Ed. 2d 973 (1967).
But how does the matter stand with respect to the Allegheny County seizures? Although a recess was taken to permit the arresting officers to be called, at the conclusion of the recess counsel for the Allegheny County defendants elected not to offer any testimony.
The rule therefore applies that an inference may be drawn that such testimony would not have helped defendants' case. Graves v. United States, 150 U.S. 118, 121, 14 S. Ct. 40, 37 L. Ed. 1021 (1893); United States v. Jackson, 257 F.2d 41, 44 (C.A. 3, 1958); United States v. Restaino, 369 F.2d 544, 547 (C.A. 3, 1966). The same rule will apply, wherever ...