The opinion of the court was delivered by: POLLACK
The operator of a retail book store in the Times Square area of New York City sues members of the Police Department, the District Attorney and several State court judges for a declaratory judgment that Section 235.10(1) of the New York Penal Law, McKinney's Consol.Laws, c. 40, which creates a statutory presumption relating to obscenity offenses, is unconstitutional and that Sections 791 et seq. of the New York Code of Criminal Procedure, governing search warrant procedures, are unconstitutional as applied to obscenity offenses. Plaintiff seeks a declaration that previous arrests of its officer and employees and seizures of materials, which had either been promoted or possessed with intent to be promoted were illegal and excessive, an injunction against pending criminal prosecutions and an order that the materials seized be returned to it. An injunction is also sought against future arrests and seizures if made without a prior judicial determination of obscenity upon an adversary proceeding. A three-judge court to deal with these matters, and interlocutory injunctive relief, have been demanded.
The grounds asserted for the claimed unconstitutionality of New York Penal Law Section 235.10(1), viz., that it creates a conclusive presumption, that it shifts the burden of proof of scienter to a defendant and that it eliminates as a defense good faith belief that the material is not obscene; do not raise a substantial constitutional question. The presumption is not "conclusive", People v. Terra, 303 N.Y. 332, 334-335, 102 N.E.2d 576 (1951), the burden of proof of the case is not shifted, Speiser v. Randall, 357 U.S. 513, 523-524, 78 S. Ct. 1332, 2 L. Ed. 2d 1460 (1958), and the good faith referred to is not a defense protected by the First Amendment, Mishkin v. New York, 383 U.S. 502, 510, 86 S. Ct. 958, 16 L. Ed. 2d 56 (1966).
Even assuming that a substantial constitutional question has been raised as to a procedure which, in advance of adversary hearing on the issue of obscenity, includes the seizure of allegedly obscene material and the arrest of those in possession thereof, plaintiff is, nevertheless, not entitled to have a three-judge court convened to consider this question.
A three-judge court is properly convened only upon the ground of the alleged unconstitutionality of a statute. Swift & Co. v. Wickham, 382 U.S. 111, 120, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965). It is not to be convened to restrain the alleged lawless exercise of authority by a state official. See, Evergreen Review, Inc. v. Cahn, 230 F. Supp. 498, 502 (E.D.N.Y.1964) (three-judge court).
The statutes governing the procedures used here, New York Code of Crim.Proc. § 791 et seq., do not prohibit an adversary hearing if constitutionally required prior to an arrest or seizure. Consequently, unlike the statute involved in Evergreen Review, supra at p. 501, n. 2, the statute here may be constitutionally applied. That being so, even if a substantial federal question is raised here, it does not concern the constitutionality of the statute but only the constitutionality of the result obtained by use of the statute. Tyrone, Inc. v. Wilkinson, 4th Cir., May 6, 1969, 410 F.2d 639, affirming 294 F. Supp. 1330 (E.D.Va.1969). Any unlawful seizures made here can be remedied without convening a three-judge court. Cf. Potwora v. Dillon, 386 F.2d 74 (2d Cir. 1967).
The Supreme Court has held that confiscatory seizure of substantial quantities of books or other matter is not permissible unless preceded by an adversary judicial determination of the obscenity of the material. A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964). See, United States v. Brown, 274 F. Supp. 561 (S.D.N.Y.1967).
An arrest and an accompanying seizure of specimens only of the allegedly obscene materials are another matter entirely. No decision has thus far prohibited the normal police function of effecting an arrest and the seizure of sample evidence of a suspected crime being committed. Such an arrest and a limited supporting seizure are not tantamount to a prior restraint since the jeopardy faced is essentially the restraint of obscenity law itself in respect of the remainder of the wares on the shelves and self-censorship in respect thereof at the option of the merchant. It has never been held that liberty of speech is absolute. Times Film Corp. v. City of Chicago, 365 U.S. 43, 47, 81 S. Ct. 391, 5 L. Ed. 2d 403 (1961). The protection even as to previous restraint is not absolutely unlimited. Near v. Minnesota, 283 U.S. 697, 716, 51 S. Ct. 625, 75 L. Ed. 1357 (1931).
The plaintiff would require the police to proceed by a prior adversary judicial hearing on the question of its obscenity before a specimen of questioned matter could be seized as evidence. The plaintiff would eliminate the right of the police to arrest the purveyor of the material until after the adversary judicial hearing. This all seems to carry the protection of liberty of speech too far and adversely to the public interest to be protected.
We must clearly understand that obscenity is not protected under the Free Speech Clause of the Constitution; it is a valid exercise of the State's police powers to enact legislation making the dissemination of obscene material unlawful, Roth v. United States, 354 U.S. 476, 485-487, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957). Yet the merchants of what our eyes and ears tell us and our common sense confirms to be obscene, resist any effort to place them in jeopardy of arrest and seizure of evidence without a prior declaratory judgment of obscenity under adversary circumstances.
It cannot be the law, free speech rights notwithstanding, that peddlers and purveyors of smut and despicable vulgarity have a constitutional license to publicly exploit pictures, magazines and books plainly exhibiting gross depravity, with complete immunity from on-the-spot arrest of the merchant and seizure of a reasonable quantity of the evidence on which to prosecute the arrest. It seems ludicrous to suggest that apprehension of suspected criminals and their unsavory wares requires adversary court proceedings to stamp the contents as probably obscene and to obtain authorization for an arrest and a seizure of the evidence supporting the arrest. While this sort of scene is being enacted, the sale and distribution of the material would not be in any jeopardy and the evidence could be consumed - probably at an accelerated rate under the impetus of publicity of obscenity proceedings in respect thereof. If the police are unable to seize the evidence on which the arrest depends, there is real danger that it will become unavailable to a prosecution before a trial of an adversary issue can be concluded. It is fatuous to assume that the evidence would not meanwhile be sold off or destroyed ...