The opinion of the court was delivered by: WEINFELD
EDWARD WEINFELD, District Judge.
Plaintiff, the owner of a theatre, moves for the return of motion picture films which had been exhibited at its theatre, projection and sound equipment and $923 in United States currency, all of which had been seized under a search warrant. The warrant was issued by a judge of the Criminal Court in the City of New York upon the affidavit of a police officer, who described the nature of the films and alleged "probable cause to believe" that they were "obscene within the purview of section 235.00, subd. 1, of the Penal Law (Obscenity)." The judge who issued the search warrant, which also authorized the seizure of the films, did not see them. Four employees of plaintiff are charged in two counts with violation of section 235.05 of the Penal Law of the State of New York, McKinney's Consol. Laws, c. 40, in that they did (1) promote and possess, with intent to promote, obscene materials, and (2) produce, promote and direct an obscene performance.
The seizure of the films and the other material was made without a prior adversary hearing, as mandated in Bethview Amusement Corp. v. Cahn.
The State, however, urges that Bethview is inapplicable because the film there seized, while allegedly "obscene," was not "hard core pornography," whereas here the seized films, according to it, are "hard core." The attempt on the basis of this purported distinction to read an exception into Bethview is superficial and without substance. Apart from the fact that determining what is "hard core pornography" involves an evaluation of judgment (here made exparte by a police officer), of which Mr. Justice Stewart, in his well known phrase, said he "perhaps * * * could never succeed in intelligibly" defining it, "[but] I know it when I see it,"
the fact is that in Bethview the Court of Appeals significantly noted, "[we] are not called upon to decide whether the film was in fact obscene."
The holding in Bethview, based upon the First Amendment constitutional considerations, is so explicit, at least to this court, that if any exception is to be read into it, it should be done by the Court of Appeals.
The motion for the return of the seized films and other property and currency is granted without prejudice to defendants proceeding in accordance with the requirements of Bethview. The defendant's ...