The opinion
Dissenting Opinion by
Jacobs, J.:
I dissent from the majority’s conclusion that the film was unconstitutionally seized. In my opinion, neither Quantity of Boohs v. Kansas, which involved the mass seizure of all the available copies of boohs when one copy was sufficient for evidentiary purposes; nor Marcus v. Search Warrant, which involved search warrants for magazines which warrants were defective because they provided no guide to the seizing officers as to what was “obscene”; nor Freedman v. Maryland, which involved an elaborate prior censorship scheme for motion pictures, compels that conclusion.
The United States Supreme Court noted the distinction between the type of case now before this Court and the Maryland censorship scheme when it said at p. 57 of Freedman: “The administration of a censorship system for motion pictures presents peculiar dangers to constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding puts the initial burden on the exhibitor or distributor.” In Freedman the Court held at p. 58, “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.” (Emphasis added.) The taking of one film to use as evidence in a criminal prosecution after it has been shown to the public is neither the prior censorship nor the “final restraint” on which the Freedman case rested. 1 I fear that the ma *526 jority in its reliance on language from a censorship case will make it impossible for law enforcement officials to prosecute obscenity in motion pictures after the viewing public complains about it. Therefore, I must dissent.
Ervin, P. J., joins in this dissent.
Tlie Court said, at p. 58, “only a- procedure requiring a judicial determination suffices to impose a valid final restraint.”