adversary hearing in Missouri

1975In that case, relying on Heller v. New York, 413 U.S. 483 , 93 S.Ct. 2789 , 37 L.Ed.2d 745 (1973) it was stated: Nor is there ‘an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. . . . seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy preven

1975In that case, relying on Heller v. New York, 413 U.S. 483 , 93 S.Ct. 2789 , 37 L.Ed.2d 745 (1973) it was stated: Nor is there ‘an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. . . . seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy preven

2021To the contrary: [T]he prosecutor’s role transcends that of an adversary: he “is the representative not of an ordinary party to a controversy, but of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.” United States v. Bagley, 473 U.S. 667 , 675 n.6 (1985), quoting, Berger v. United States, 295 U.S. 78, 88 (1935) (second and third alterations in original).

1999Id. at 944 .

1999Mitchell v. Dalton, 831 S.W.2d 942 (Mo.App.1992), the court held that a parole hearing was not a contested case because certain “essential indicia of an adversary hearing” were missing from the process.

1987Mitchell holds constitutional due process to be satisfied if seizure is preceded by a factual showing made to a judicial officer of probable cause for the relief, the furnishing of adequate security and provision for an adversary hearing promptly after the seizure occurs, Mitchell, supra, 416 U.S. at 606 , 94 S.Ct. at 1899 .

1987Mitchell holds constitutional due process to be satisfied if seizure is preceded by a factual showing made to a judicial officer of probable cause for the relief, the furnishing of adequate security and provision for an adversary hearing promptly after the seizure occurs, Mitchell, supra, 416 U.S. at 606 , 94 S.Ct. at 1899 .

1980At the hearing he “may challenge the summons on any appropriate ground,” Reisman v. Caplin, 375 U.S. 440, at 449 , [ 84 S.Ct. 508, at 513 , 11 L.Ed.2d 459 ].

1980At the hearing he “may challenge the summons on any appropriate ground,” Reisman v. Caplin, 375 U.S. 440, at 449 , [ 84 S.Ct. 508, at 513 , 11 L.Ed.2d 459 ].

1980When the police finally executed the warrant, the store was open for business and there were customers present when the police were boxing up the magazines. * * All Star News, supra, sanctions the prior restraint of one copy of each magazine or film, which is exactly what took place in the case at bar.

1980In other words, the Order provided for the prior restraint of one item and only of the films and magazines which prior restraint is sanctioned by our Supreme Court in All Star News, supra.” Respondent cites a number of federal cases: Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969); Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2nd Cir. 1969), among others.

1980In other words, the Order provided for the prior restraint of one item and only of the films and magazines which prior restraint is sanctioned by our Supreme Court in All Star News, supra.” Respondent cites a number of federal cases: Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969); Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2nd Cir. 1969), among others.

1980In other words, the Order provided for the prior restraint of one item and only of the films and magazines which prior restraint is sanctioned by our Supreme Court in All Star News, supra.” Respondent cites a number of federal cases: Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969); Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2nd Cir. 1969), among others.

1980In other words, the Order provided for the prior restraint of one item and only of the films and magazines which prior restraint is sanctioned by our Supreme Court in All Star News, supra.” Respondent cites a number of federal cases: Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968); Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (4th Cir. 1969); Bethview Amusement Corp. v. Cahn, 416 F.2d 410 (2nd Cir. 1969), among others.

1979Lalumondier, 518 S.W.2d at 643 . 4 .

1977We repeat and summarize the factors that lead us to this conclusion: (1) the evidence sought was relevant, could have been obtained in no other way, and there was probable cause to believe that the operation would produce it; (2) the operation was minor, was performed by a skilled surgeon, and every possible precaution was taken to guard against any surgical complications, so that the risk of permanent injury was minimal; (3) before the operation was performed the District Court held an adversary hearing at which the defendant appeared with counsel; (4) thereafter and before the operation was

1977We repeat and summarize the factors that lead us to this conclusion: (1) the evidence sought was relevant, could have been obtained in no other way, and there was probable cause to believe that the operation would produce it; (2) the operation was minor, was performed by a skilled surgeon, and every possible precaution was taken to guard against any surgical complications, so that the risk of permanent injury was minimal; (3) before the operation was performed the District Court held an adversary hearing at which the defendant appeared with counsel; (4) thereafter and before the operation was

1977While it is true that a state’s direct impingement of protected free speech rights must be preceded by an adversary hearing, Board of Regents v. Roth, 408 U.S. 564 , 574-75 n. 14, 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972), such a rule is not applicable here.

1977While it is true that a state’s direct impingement of protected free speech rights must be preceded by an adversary hearing, Board of Regents v. Roth, 408 U.S. 564 , 574-75 n. 14, 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972), such a rule is not applicable here.

1975After an adversary hearing the court found the film to be obscene and in violation of § 563.280 and issued a temporary injunction enjoining petitioner and others “from . . . exhibiting showing or displaying to the public . the film ‘Deep Throat’, as viewed by the court, and any and all copies and duplicate originals thereof, and any and all other films entitled, ‘Deep Throat’, that publish and display substantially the same characters, scenes and dialogue contained in the film ‘Deep Throat’, as viewed by the court in this cause, and that lie within the . definition of obscenity as set forth in

1975After an adversary hearing the court found the film to be obscene and in violation of § 563.280 and issued a temporary injunction enjoining petitioner and others “from . . . exhibiting showing or displaying to the public . the film ‘Deep Throat’, as viewed by the court, and any and all copies and duplicate originals thereof, and any and all other films entitled, ‘Deep Throat’, that publish and display substantially the same characters, scenes and dialogue contained in the film ‘Deep Throat’, as viewed by the court in this cause, and that lie within the . definition of obscenity as set forth in

1974Nor is there “an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. * * * seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film.” Heller v. New York, supra, 413 U.S., 1 . c. 488, 492, 93 S. Ct. 1 . c. 27

1974Nor is there “an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. * * * seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film.” Heller v. New York, supra, 413 U.S., 1 . c. 488, 492, 93 S. Ct. 1 . c. 27

1971The Court is not unmindful of the decision in A Quantity of Copies of Books v. Kansas, 378 U.S. 205 , 84 S.Ct. 1723 , 12 L.Ed.2d 809 (1964), wherein the United States Supreme Court held that the seizure there involved did violence to the First Amendment and that thus, in the absence of a pre-seizure adversary hearing, the seizure in that particular case was unconstitutionally impermissible.

1971The Court is not unmindful of the decision in A Quantity of Copies of Books v. Kansas, 378 U.S. 205 , 84 S.Ct. 1723 , 12 L.Ed.2d 809 (1964), wherein the United States Supreme Court held that the seizure there involved did violence to the First Amendment and that thus, in the absence of a pre-seizure adversary hearing, the seizure in that particular case was unconstitutionally impermissible.

1971This question was considered at length in Bazzell v. Gibbens, D.C., 306 F.Supp. 1057 , and we agree with the result there reached.

1971But where, as here, a single copy of a film is seized for the sole purpose of preserving it as evidence to be used in a criminal action to be brought pursuant to a State statute already held, in all respects pertinent hereto, to be constitutional on its face, * * * such a seizure cannot be said to be violative of the First Amendment’s guarantees albeit a side effect of such a seizure coincidentally prevents that one particular copy of the film from being further disseminated pending the outcome of the criminal proceedings.” We conclude that for the reasons set forth in State v. Vollmar, supra,

1971But where, as here, a single copy of a film is seized for the sole purpose of preserving it as evidence to be used in a criminal action to be brought pursuant to a State statute already held, in all respects pertinent hereto, to be constitutional on its face, * * * such a seizure cannot be said to be violative of the First Amendment’s guarantees albeit a side effect of such a seizure coincidentally prevents that one particular copy of the film from being further disseminated pending the outcome of the criminal proceedings.” We conclude that for the reasons set forth in State v. Vollmar, supra,

1970However, defendant concedes this argument was denied in State v. Green, supra, wherein this court said, loc. cit. 903: “That provision touches only the preliminary determination as to whether there shall be a hearing upon the petition.” As expressed by the Supreme Court of Michigan in People v. Chapman, 301 Mich. 584 , 4 N.W.2d 18 , loc. cit. 26: “The two psychiatrists who made the exam-amination and report provided for in the statute could not make a final determination that defendant was a criminal sexual psychopathic person.

1970However, defendant concedes this argument was denied in State v. Green, supra, wherein this court said, loc. cit. 903: “That provision touches only the preliminary determination as to whether there shall be a hearing upon the petition.” As expressed by the Supreme Court of Michigan in People v. Chapman, 301 Mich. 584 , 4 N.W.2d 18 , loc. cit. 26: “The two psychiatrists who made the exam-amination and report provided for in the statute could not make a final determination that defendant was a criminal sexual psychopathic person.