(A) Where the subject matter is offered for distribution to the public as stock in trade of a lawful business or activity or, as in the case of films, is exhibited at a commercial theater showing regularly scheduled performances to the general public, no person shall be arrested for a violation of any of the provisions of this subchapter unless the arresting officer shall have first obtained an arrest warrant, and no property shall be seized as evidence unless a search warrant shall have first been obtained pursuant to the
provisions of this subchapter; provided, that the quantity of matter seized shall encompass no more than is reasonable and necessary for the purpose of obtaining evidence, and provided further, that no warrant for arrest shall issue upon probable cause for any sales clerk, motion picture projectionist, usher, or ticket taker, unless it shall be shown that the sales clerk, projectionist, usher, or ticket taker has a financial interest in the act complained of other than that interest normally within the scope of his or her employment.
(B) (1) At any time after seizure or the obtaining of evidence by purchase, prior to arrest, the city, defendant, owner, or other party in interest of any matter seized or purchased may apply for and obtain a prompt adversary hearing for the purposes of obtaining a preliminary determination of obscenity. If evidence has been obtained by purchase, the court shall direct the Clerk of the Court to issue notice to the defendant informing the person of the availability of a prompt adversary hearing prior to the issuance of a warrant of arrest.
(2) At any time after seizure the city, owner, or other party in interest of any matter seized, may apply for and obtain a prompt adversary hearing for the purpose of obtaining a determination of obscenity. If the court determines at the hearing that the matter is obscene, the matter shall be held as evidence and a warrant of arrest may be issued for the arrest of the defendant; provided, if the defendant, owner, or other party in interest of any matter seized or purchased shall not apply for a prompt adversary hearing with five days after the seizure occurs or within seven days after notice is issued by the court, an arrest warrant may be issued for the arrest of the defendant.
(3) In the case of films or motion pictures, at any time after arrest and prior to a trial or any adversary hearing for the purpose of obtaining a preliminary determination of obscenity, the defendant or owner of any matter seized, upon showing that other copies of the film or motion picture are not available to be exhibited, may apply to the court and upon this application the court shall order that the applicant be permitted to copy the film or motion picture, at his or her own expense, so that showing can be continued pending a judicial determination of obscenity in an adversary hearing.
(1987 Code, § 6-275) (Ord. 35, 1997, passed 10-27-1997)