The opinion
Sanders, J.
(concurring) — I concur only with the majority’s result for the reasons so well articulated by Judge Becker on behalf of the Court of Appeals. See Furfaro v. City of Seattle, 97 Wn. App. 537, 542-51 , 984 P.2d 1055 (1999), review granted, 140 Wn.2d 1012 , 5 P.3d 8 (2000).
In summary, when an activity enjoys legal protection unless obscene, an arrest warrant must be obtained from the judiciary. This is because obscenity determinations are ordinarily judicial ones, and, moreover, the alternative to an after-the-fact execution of a warrant is the prior restraint implicit in a midperformance arrest.
The majority’s claimed distinction between the admitted necessity of a warrant to seize a videotape and the supposed propriety of a warrantless arrest of a performer in mid-performance defies common sense. 7 As in the case of the warrantless seizure of a film, “Nothing prior to seizure afforded a magistrate an opportunity to ‘focus searchingly on the question of obscenity.’ ” Roaden v. Kentucky, 413 U.S. 496, 506 , 93 S. Ct. 2796, 2802 , 37 L. Ed. 2d 757 (1973) (quoting Heller v. New York, 413 U.S. 483, 488-89 , 93 S. Ct. 2789 , 37 L. Ed. 2d 745 (1973)). The principle is the same in either case. But it is even more applicable to a live performance than a film because the film may be preserved and shown again but the performance is gone forever. See also People v. Adais, 114 Misc. 2d 773 , 452 N.Y.S.2d 543, 545-46 (N.Y. Crim. Ct. 1982).
I would contend the issue is not whether the police *386 guessed right, but rather whether the police should be in a position to guess at all.
Alexander, C.J., and Johnson, J., concur with Sanders, J.
After modification, further reconsideration denied December 5, 2001.
Cf. majority at 370 n.2 (quoting State v. Dixon, 78 Wn.2d 796, 798, 479 P.2d 931 (1971)), “ ‘There is nothing unconstitutional about common sense.’ ” If anything, the reverse to the majority’s view would be more nearly correct. “It is almost preposterous to believe that systems of censorship prohibited by our Constitution as to book publishers and film producers ought not be prohibited as to our dancers, actors and comedians.” People v. Adais, 114 Misc. 2d 773 , 452 N.Y.S.2d 543, 546 (N.Y. Crim. Ct. 1982).