
    STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. TONI TAYLOR AND 613 ADULT BOOKSTORE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 26, 1976
    Decided July 16, 1976.
    
      Before Judges Ekitz, Seidmakt and Milmed.
    
      
      Mr. John McFeeley, III, Assistant Prosecutor, argued the cause for appellant (Mr. Thomas J. Shusted, Camden County Prosecutor, attorney).
    
      Ms. Susan W. Sciacca, Deputy Attorney General, argued the cause 011 behalf of Mr. William F. Hyland, Attorney General of New Jersey, amicus curiae (Mr. Frederick S. Oohen, Deputy Attorney General, of counsel and on the brief).
    
      Mr. Robert Edward Levy argued the cause for respondents.
   Per Curiam.

Pursuant to a search warrant obtained by an investigator of the Camden County Prosecutor’s office, a large quantity of allegedly obscene films was seized on March 7, 1975 at defendants’ bookstore in Mt. Ephraim. Subsequently, defendant Toni Taylor and two others were indicted for uttering or possessing with intent to sell or selling to another seven separately titled films, in violation of N. J. S. A. 2AA15-2.

Defendants moved under R. 3:5-7 to suppress the evidence and for the return of all the films. The motion was denied, but the trial judge reserved for further argument the question of whether duplicates of the seized films should be returned. Following such argument an order was entered “that all duplicate copies of the films seized are to be returned to defendants,” and that “the court will not conduct an adversary bearing as to the obscenity of the duplicate films” prior to their return. Twenty-eight films were listed in the order, which also stayed the return “until August 21, 1975, pending timely filing of a Notice of Appeal by the Prosecutor and final disposition of that appeal.”

The State moved for leave to appeal. We reserved decision and remanded the matter to the trial judge, sitting without a jury, for a hearing

* * # fot (.¡jg so]g purpose of a prima facie determination of obscenity vel non with respect to the films which are the subject of the challenged action * * * [s]uch hearing * * * shall be commenced within seven days after receipt of this order by the parties, and concluded as expeditiously as possible. * * * *

The trial judge, in the presence of both counsel, viewed 82 films. He found, applying “the three pronged test set forth in Miller versus California [413 U. S. 15, 24, 93 S. Ct. 2607, 2615, 37 L. Ed. 2d 419 (1973)],” that the films were “prima facie obscene.” Pursuant to his direction, a transcript of his findings was forwarded to us. We granted the State’s motion for leave to appeal without, however,, “divest [ing] the trial court of its jurisdiction to proceed with any extant criminal action.” At our invitation the Attorney General submitted a brief amicus curiae. We would be remiss if we did not at this point express to the Attorney General and the Chief of the Division of Criminal justice our appreciation of their excellent cooperation.

The thrust of the prosecutor’s argument on this appeal is that “the films sought to be returned have been found to be prima facie obscene and are, therefore, contraband in violation of N. J. S. A. 115-2 [sic; obviously, 2A:115-2],” and that they are subject to lawful detention under B. 3:5-7 (b). State v. Shapiro, 122 N. J. Super. 409 (Law Div. 1973), is cited in support. The amicus curiae brief urges that (1) an adversary hearing was not required prior to the seizure of the film; (2) no such right existed where, as here, allegedly obscene materials are seized, pursuant to a warrant, to preserve the material as evidence in a criminal prosecution; and (3) the films, “as per the dicta of Heller [Heller v. New York, 413 U. S. 483, 93 S. Ct. 2789, 37 L. Ed. 2d 745 (1973)],” need not be returned.

Defendants contend that (1) retention of the duplicates pendente lite is an unlawful prior restraint, and that there can be no mass seizure without a prior judicial hearing to determine probable cause; (2) if the evidence is to be preserved, then provision is to be made “for the making of copies so that circulation and distribution will not be impeded during the period awaiting a final judicial determination;” (3) State v. Shapiro, supra, has been overruled by Heller v. New York, supra, and if the State’s objective “is to destroy all of the distributor’s files, however, or to enj'oin their distribution, thereby totally abridging the given work’s circulation, a pre-seizure determination of obscenity is constitutionally required”; (4) in an obscenity prosecution the State has the burden of proof “for a final lawful restraint”; (5) return of the duplicates is “mandated” by State v. Osborne, 117 N. J. Super. 409 (App. Div. 1971), certif. den. 60 N. J. 139 (1972), and the State “must return all duplicates and all material that is not to be used as evidence in any criminal prosecution,” and (6) the “Issuing authority allowed investigating officer to ad hoe determination [sic] of obscenity.”

We deem it advisable at the outset to state our firm intention to decide only the narrow issue before us: The correctness of the order under review. As we indicated earlier in a footnote, we shall not address ourselves to the validity of the search and seizure or to any issues of mass seizure or prior restraint. Apart from the failure of defendants to present those questions by way of cross-appeal, we perceive no reason to consider them on our own motion on the record before us. Defendants have not supplied us with a transcript of the suppression motion, nor with any record of the search and seizure proceedings.

Nor do we deem it necessary to determine whether the films in question could be retained as “contraband.” We consider the issue irrelevant here. While both the prosecutor and the Attorney General place reliance on State v. Shapiro, supra, it is to be noted that the proceedings there were on a motion under B. 3 :5-7(b) seeking the return of allegedly obscene publications found to have been illegally seized, thus involving the issue of whether the property was “otherwise subj'ect to lawful detention.” We are, of course, not bound by the determination in that case. But, in any event, we need express no opinion on the correctness of the legal principles enunciated in State v. Shapiro. Since the trial judge in the matter before us concluded that the films had been seized legally, he was not required, nor are we, to make a further determination of whether defendants were entitled under B. 3 :5-7 (b) to the return of the films, or whether, on a motion for return of the seized items under that rule, the property was “otherwise subject to lawful detention.”

Beyond this, we are of the view that neither Heller v. New York, nor State v. Osborne, supra, is applicable to this case. The films in question were not subjected to any form of “final restraint,” in the sense of being enjoined from exhibition or threatened with destruction. See Heller v. New York, supra, 413 U. S. at 490, 93 S. Ct. 2789. The court in Heller carefully pointed out, moreover, that there is no absolute right to a prior adversary hearing where allegedly obscene material is seized, pursuant to a warrant, to preserve the material as evidence in a criminal prosecution. Id. at 488, 93 S. Ct. 2789. But the films here were determined to be “prima facie” obscene at the hearing we ordered (and defense counsel acknowledged at oral argument that the trial judge responded to our mandate and that no objection was voiced to the procedure employed). The trial judge’s vivid description of the films he viewed fully supports the conclusion he reached. State v. Johnson, 43 N. J. 146, 162 (1964).

Defendants argued less at the hearing below than they do on this appeal. Their counsel noted then his intent to file another motion for the return of all the films other than those listed in the indictment, contending that they were “not being used for evidentiary purposes and therefore constitute an immediate prior restraint upon their distribution.” As for the duplicates, his contention was that the prosecutor “seems to feel that he can grab everything that isn’t nailed down and make copies and come back in and grab everything that isn’t nailed, then he’ll let us make copies.” The State’s position was that all the films “are relevant to our ease to show possession with intent to distribute or utter and also scienter on the part of the individual defendants, and I think the volume alone goes to both of these questions.” The trial judge said:

I am going to grant your motion, Mr. Levy. I feel that the First Amendment requires that where there has been a seizure and the Prosecutor has had sufficient time to determine that the copies that he has seized are exact duplications of a particular film that he can keep for evidence or of course, if it’s the single copy subject to your making copies, but that where there has not been any determination other than the probable cause or [sic] its seizure, there hasn’t been any plenary hearing and adversary proceeding determining obscenity. That once he’s satisfied himself, that the copies are exact duplicates, that he has to return them.

The trial judge’s concept of Heller v. New York, supra, was that “until there has been a determination of obscenity on a particular film, * * * the owner of the film is entitled to duplicates,” and he declined to hold a pretrial hearing on the issue of obscenity. We do not find any such requirement in Heller, which, it is to be noted, involved the seizure at a commercial movie theater, pursuant to a search warrant, of an allegedly obscene film. The Heller court differentiated this type of Situation from that in Quantity of Copies of Books v. Kansas and Marcus v. Search Warrants of Property, supra, which concerned the seizure of large quantities of books for the sole purpose of their destruction. In such case, the court said, “a prior judicial determination of obscenity in an adversary proceeding was required to avoid ‘danger of abridgement of the right of the public in a free society to unobstructed circulation of nonobscene books.’ ”

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. [413 U. S. at 492-493, 93 S. Ct. at 2794-2795.]

It has not been demonstrated here, nor did the trial judge hold, that the films were seized for any purpose other than to preserve them as evidence in a criminal proceeding for the alleged violation of N. J. S. A. 2A :115-2. And the evidential relevancy of the films is not disputed. See State v. Hudson Cty. News Co., 41 N. J. 247, 257-259 (1963). The volume and contents of the material seized are clearly pertinent both to defendants’ knowledge thereof [scienter] and to their possession of the same with the intent “to utter or expose to the view or hearing of another,” or “to sell, import, print, publish * * * or offer for sale.” Furthermore, there was no showing to the trial court (indeed, the point was not raised below) that other prints of the films in question were not readily available. Cf. State v. Osborne, supra, 117 N. J. Super, at 413.

In short, on the particular facts here present, as we gather them from the record before us, we discern no valid basis for the order directing the return to defendants of the duplicate films.

It is, accordingly, reversed. 
      
       The record before us does not explain clearly why only seven films were listed in the indictment, when more than 300 reels (including duplicates) were seized.
     
      
       It is not clear whether the indictment filed May 2, 1975 was returned before or after argument on the suppression motion. In any event, a copy seems to have come into the possession of defense counsel shortly before June 27, 1975-, the date 011 which the court heard the reserved issue of the return of duplicate films.
     
      
       The procedure, to which neither counsel objected, consisted of the viewing of the films over a five-day period, followed by a verbal description of each by the trial judge and his conclusion as to their obscenity.
     
      
       We cannot tell from the record whether the total number of films in question consisted of 82 separate titles plus duplicate reels thereof, but we assume that this was the case.
     
      
       The basic guidelines for the trier of fact set forth in Miller v. California, supra, are whether (a) “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. See State v. De Santis, 65 N. J. 462, 474 (1974).
     
      
       In 'a supplemental letter, the Attorney General, consistent with his stated policy of opposing mass seizures, questioned the validity of the seizure here “of several hundred films from the defendant, including numerous duplicates.” However, it must be pointed out that the trial jxxdge denied defendant’s motion to suppress. Whether his decision was correct is not before us on this appeal, in which the States seeks a review and reversal of the trial judge’s order to return to defendants the duplicate reels of film. Defendants did not seek leave to cross appeal from the order denying their motion to suppress. See R. 2:2-4, R. 2:5-6(b). The Attorney General argued further, however, that “the illegal activity undex-taken by the State does not require the return of materials adjudicated contraband.”
     
      
       But obscene films, pictures, books, etc., are not per se contraband. State v. Muldowney, 60 N. J. 594, 602 (1972). Cf. A Quantity of Books v. Kansas, 378 U. S. 205, 211-212, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964) ; Marcus v. Search Warrants of Property, 367 U. S. 717, 730, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961).
     
      
       There is no contention liere that the seizure was on a warrant issued pursuant to 27. J. S. A. 2A :152-5; and, obviously, the case does not involve an order for the seizure and destruction of obscene materials issued in a proceeding for injunctive relief under N. J. S. A. 2A:115-3, 5 et seq.
      
     