Fritz, Seidman and Milmed.
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. 2A:115-2.*fn1
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.*fn2 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 hearing 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
The trial judge, in the presence of both counsel,*fn3 viewed 82 films.*fn4 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)],"*fn5 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 R. 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.*fn6
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 enjoin 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 ...