APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
M. FIALA, JR., Judge, presiding.
JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
The State appeals from an order of the trial court suppressing all evidence in the pending matter in which defendants were charged with public indecency, obscenity, and keeping a disorderly house. (Ill. Rev. Stat. 1977, ch. 38, pars. 11-9(a)(2), 11-20, and Municipal Ordinance 193(2).) On appeal, pursuant to Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1977, ch. 110A, par. 604(a)(1)), the issue for review is whether the trial court erred in suppressing the evidence in this matter, as the alleged misconduct was not entitled to first amendment constitutional protections. The pertinent facts follow.
Defendants Hanson, Gomez and Bowman were charged by complaint with obscenity and public indecency. Defendants Liang and Howard were charged by complaint with keeping a disorderly house, and Liang was additionally charged with obscenity. Hanson, Gomez, Liang and Owens were arrested on July 26, 1978, after Hanson and Gomez were observed performing cunnilingus on each other, and Hanson, Bowman and Howard were arrested on August 23, 1978, after Hanson was observed performing an act of fellatio on Bowman. Defendants moved to suppress evidence in the case on the grounds their arrests were effected without a warrant. They alleged their conduct was protected by the first amendment of the United States Constitution and could not be restrained without a warrant or prior judicial determination.
On February 9, 1979, a hearing was held on defendants' motion to suppress. The stipulated facts indicate that on August 23, 1978, Officer George Carey paid a $5 admission fee to enter the Festival Theatre. Hanson appeared on stage, talked with the audience for approximately five minutes, began to dance to music while simultaneously removing her clothes. A short time later, Carey observed her lying nude on a rug with her genitals exposed to the audience and "simulating" *fn1 the touching of her organs.
Hanson was then joined by Bowman, who was dressed in briefs, a T-shirt and a cape. He "simulated" sexual intercourse and oral sex upon her. Carey would testify that he observed Hanson "simulate" fellatio on Bowman.
A further "simulated" intercourse took place between Hanson and Bowman; thereafter, Hanson got dressed, talked to the audience and asked them to sign her petition for the freedom to observe particular live performances. Carey then arrested Hanson, Bowman and Howard. It was further stipulated that there had been no arrest warrant issued for the arrest of any of the performers, nor had there been prior judicial scrutiny of any of the performances.
Defendants argued that their arrest was illegal as nude dancing is protected by the first amendment and the question of whether the dance was obscene is a constitutional question requiring a judicial determination and an arrest warrant.
The court found that a live performance is entitled to identical protection of the first amendment as a film and as such there should have been an application for an arrest warrant. This appeal follows.
We are asked to consider whether the trial court properly suppressed all evidence of defendants' conduct. The State argues that defendants were arrested only after a Chicago police officer observed Hanson and Bowman engaged in sexual intercourse, cunnilingus and fellatio. Further, the arrest of defendants is not equivalent to a seizure of film.
• 1, 2 It is well settled that a police officer may effect an arrest without a warrant if the officer has probable cause (Ill. Rev. Stat. 1979, ch. 38, par. 107-2); where he believes that a criminal offense has been committed in his presence and the person arrested committed it (People v. Schwing (1971), 133 Ill. App.2d 100, 272 N.E.2d 779; People v. Accardi (1965), 58 Ill. App.2d 364, 208 N.E.2d 43). Whether reasonable cause exists depends upon the "factual and practical considerations of everyday life upon which reasonable men, rather than legal technicians, act." (People v. Johnson (1979), 71 Ill. App.3d 143, 148, 388 N.E.2d 1320.) We believe a resolution of this matter requires an analysis of the basis of the charges involved here.
• 3 Defendants were charged with public indecency proscribed by section 11-9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 11-9). They were arrested only after Officer Carey observed Hanson and Bowman "simulating" sexual intercourse and oral sex in his presence at the theatre. These acts are specifically proscribed by the statute. Under these facts defendants were properly arrested and testimony as to this charge should not have been suppressed.
With regard to the obscenity charge, defendants argue that live shows, even those including nude dancing, are protected by the first amendment. Nude dancing is a form of expression which is protected by the first amendment. (Jamaica Inn, Inc. v. Daley (1977), 53 Ill. App.3d 257, 368 N.E.2d 589, rev'd on other grounds (1978), 72 Ill.2d 415, 381 N.E.2d 694.) However, whether the conduct in question here is entitled to this protection is not a determination we need to make now as the issue on appeal is suppression of all evidence relating to this charge. The issue of whether the conduct involved here is obscene must be tested by the standards of People v. Ridens (1972), 51 Ill.2d 410, 282 N.E.2d 691, aff'd on remand (1974), 59 Ill.2d 362, 321 N.E.2d 264; People v. Gould (1978), 60 Ill.2d 159, 324 N.E.2d 412.) Those standards require that the material be regarded as a whole (City of Chicago v. Festival Theatre Corp. (1980), 88 Ill. App.3d 216, 410 N.E.2d 341, appeal pending) with the view that expression that is sexually oriented, but not obscene, is entitled to first amendment protection. (City of Rolling Meadows v. Kohlberg (1980), 83 Ill. App.3d 10, 403 N.E.2d 1040.) *fn2 The Supreme Court has stated in Southeastern Promotions, Ltd. v. Conrad (1975), 420 U.S. 546, 557, 43 L.Ed.2d 448, 458, 95 S.Ct. 1239, 1246, that "[e]ach medium of expression, of course, must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems." (420 U.S. 546, 557, 43 L.Ed.2d 448, 95 S.Ct. 1239, 1246.) Ultimately, a determination of what constitutes obscenity is a matter within the province of the court. People v. Better (1975), 33 Ill. App.3d 58, 337 N.E.2d 272.
• 4 In the pending matter, the police officer arrested defendants and charged them with obscenity after he observed an "obscene" performance presented and defendants participating therein. He reasonably believed he witnessed a violation of our criminal statute at that particular time. Live performances present particularly difficult problems as they may be altered from day to day from legitimate to illegitimate expressions. (City of Chicago v. Festival Theatre Corp.) As such, an evaluation of a live performance's contents can only be made at the time of the particular instance in question, since we cannot predict what conduct will be legally obscene or presume that future expressions are obscene. (City of Chicago v. Festival Theatre Corp. (1980), 88 Ill. App.3d 216, 410 N.E.2d 341, appeal pending.) The police officer's evaluation of this situation is by no means determinative of a conviction, and cannot be solely relied on by a judicial officer in making a determination as to its obscenity. (Piepenburg v. Cutler (10th Cir. 1981), 649 F.2d 783.) It is but a factor in the evidence as the conduct must be regarded as a whole applying contemporary standards by the trier of fact to determine (a) whether the average person would find that the work taken as a whole, appeals to the prurient interest; (b) whether the work depicts or described, in a patently offensive way, sexual conduct specifically defined by the applicable statute or ordinance; and (c) whether the work is utterly without redeeming social value. (People v. Ridens; People v. Gould.) We again reiterate, a determination ...