Lo-Ji Sales, Inc. v. New York

PETITIONER: Lo-Ji Sales, Inc.
LOCATION: Adult Store

DOCKET NO.: 78-511
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: State appellate court

CITATION: 442 US 319 (1979)
ARGUED: Apr 16, 1979
DECIDED: Jun 11, 1979

Bernard A. Berkman - for petitioner
Richard L. Parker - for respondent

Facts of the case

A New York State police investigator bought two films from Lo-Ji Sales, Inc.’s Adult Store. After viewing the videos, he took them to the Town Justice, who determined that the films violated state obscenity laws. The Justice issued a warrant authorizing a search of the store and seizure of other copies of the two films. Because the investigator said that more obscene materials would be found and asked the Justice to accompany him to the search, the Justice included in the warrant, “the following items which the Court independently has determined to be possessed in violation” and left it open ended so any items found at the store could be added later. During the search, the store’s clerk was arrested. The Justice viewed several videos, books, and other materials and determined that they were obscene. The police seized all of these materials, took and inventory of the items and then filled out the open ended warrant. Before trial, the store owner moved to suppress the seized evidence as violating the First, Fourth, and Fourteenth Amendments. The judge denied the motion and the store owner plead guilty. The Supreme Court of the State of New York affirmed the conviction. The Court of Appeals of New York denied leave to appeal.


Did the search of the adult bookstore with an open-ended warrant violate the First, Fourth, and Fourteenth Amendments?

Media for Lo-Ji Sales, Inc. v. New York

Audio Transcription for Oral Argument - April 16, 1979 in Lo-Ji Sales, Inc. v. New York

Warren E. Burger:

We'll hear arguments next in 78-511, Lo-Ji Sales, Inc. against New York.

Counsel, I suggest you can take your seat until the crowd clears.

Mr. Berkman, I think you may proceed now whenever you're ready.

Bernard A. Berkman:

Mr. Chief Justice and may it please the Court.

There are a multitude of reasons why the search and seizures in this case are constitutionally tainted.

Any one of them ought to be sufficient to require the reversal of the conviction below.

First of all, the warrant under which the search was conducted was invalid both because it was issued without probable cause and because it failed to identify with particularity the items which were to be seized.

Second of all, the search was an exploratory, limitless, general search.

Third, the magistrate failed to focus searchingly on the obscenity of the seized items before seizure.

And fourth, because the seizure was so general so pervasive, so massive, it affected a restraint which required an adversary hearing on the question of obscenity in advance of seizure.

We contend that the presence of the magistrate on the premises not only failed to cure the constitutional violations but actually intensified them and we urge that the Fourth Amendment protects the petitioner against the general search and mass seizure which took place here.

William H. Rehnquist:

Well, if you say that the presence of the magistrate on the premises didn't even nil, it didn't cure the problems to which you've alluded but actually intensified them.

How -- how would the state go about handling the service situation?

Bernard A. Berkman:

Well, the state went about handling it --

William H. Rehnquist:

How would it I said in the constitutional means?

Bernard A. Berkman:

Well, it would seem to me that the entry onto the premises assuming no further rights than any customer might have the purchase or the observation of material which would not involve the authorization of an invalid warrant to search and to seize and without the massive seizure that took place here.

It might be an acceptable way of dealing with the situation.

Heller, I think demonstrates a manner in which this Court has held the seizure of material after a careful focusing upon the entirety of the materials involved was done and handled apparently properly --

Warren E. Burger:

Are you suggesting that the proper procedure was for the officer, for an officer not a judge but an officer to go on the premises of the store and buy selective pieces of material, books and films than take them back, show them to the magistrate or the judge as the basis for getting a warrant at a later point?

Bernard A. Berkman:

As I read your decision in Heller, Your Honor, it seems to me that that might have been appropriate but there are a number of other ways in which a prosecution ---

Warren E. Burger:

No, that is if you concede that's an appropriate way under Heller and other cases.

Bernard A. Berkman:

Yes, Your Honor.

And it seems to me there are a number of other ways in which a criminal prosecution might originated.

It might be that some citizen might make a purchase which he regards to be inappropriate and seeks a law enforcement.

It seems to me that the state has myriads of ways without violating both the First, Fourth and Fourteenth Amendments in which they might appropriately deal with the question of obscenity.

William H. Rehnquist:

I'd understood that the magistrate's premise -- that the magistrate's presence here was in order to assure that before seizure some neutral and detached magistrate would have examined the material.

You -- you said that's simply exacerbates the situation.

Bernard A. Berkman:

Well, Your Honor, there are a couple of things wrong with the position which has been taken by the State of New York.

One is, in our judgment the seizure was accomplished before the magistrate did anything.

The seizure was accomplished when 11 representatives of the law enforcement agencies went upon the premises, some of them in uniform filtered throughout the store, manned themselves in front of the entrance, took the names and otherwise intimidated persons who might have entered the store, kept the place under a virtual siege for approximately six hours, ransacked the entire premises, took out all of the films that were in the premises, took out all of the projectors that were in the premises not only took out certain articles of clothing which apparently had certain sexual connotations but also took the mannequins upon which they were displayed and either those circumstances, it seems to me that the seizure was effected at the time that they encircle and laid siege to that little bookstore.