Culbertson

After a jury trial defendant was found guilty of violating Penal Code, section 311.2—knowingly having in his possession, with intent to exhibit, obscene motion pictures.

Defendant appeals on the grounds that the films were unlawfully seized and that as a matter of law the films were not obscene.

At the time of his arrest, defendant owned and operated the E Street Newsstand in downtown San Diego. Located in the first floor area of the business were four machines for the viewing of peep-show movies. Just prior to defendant’s arrest—without a warrant—the officers had obtained four rolls of 16 millimeter film in a second floor area above defendant’s business.

Prior to defendant’s arrest, but on the same day, officers had been conducting an investigation into the San Diego distribution of so-called peep-show or girlie movies owned by a man in Los Angeles. Officers had already seized some of the film from one of the local outlets. The manager of that business had been arrested and advised the officers that he worked for the Los Angeles owner and with two other local men helped to edit the films and circulate them among certain named stores in San Diego. Defendant’s business was one…