Lo-Ji Sales, Inc. v. New York

PETITIONER:Lo-Ji Sales, Inc.
RESPONDENT:New York
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

ADVOCATES:
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.

Question

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

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.

Bernard A. Berkman:

That was when it occurred, and occurred before the judge even had the opportunity to focus search on anything.

William H. Rehnquist:

When the magistrate’s presence was neither improves nor detracts from your case.

Bernard A. Berkman:

I only say Your Honor, that if that may well be true, but the problem is that when somebody who appears to be a magistrate or judge and someone to whom in ordinary citizen might go for constitutional relief actually appears on the scene as an executing officer and to a warrant which he himself has issued you have problems of perhaps and even more serious kind when he goes beyond the role that the judge assumed in the Heller case by merely going on to the scene viewing the material and not exercising his prerogative as an authority to make such a search.

Warren E. Burger:

Would you have any problem whether it was 11 or 22 or 33 officers entering the premises buying books, films, and then appear all together or one by one leaving the premises and taking them to a magistrate?

Bernard A. Berkman:

Your Honor, I think the facts would depend on each particular circumstance.

I think that a massive number of law enforcement authorities made themselves be an intimidating and controlling factor.

In this situation, —

Warren E. Burger:

Well, let me — what’s the impact, let’s assume there’s that a proprietor is somewhat intimidated, what’s that got to do with what they buy and take to the magistrate?

Bernard A. Berkman:

Well, I think that if they make a purchase and if they act in — with no greater act then a customer might, then that might be appropriate.

But it seems to me that it is possible under certain facts for a large number of people to actually take over and effectuate the seizure of the entire store by their presence and control and domination of the place before they have an opportunity to take anything back to a magistrate and under those circumstances, you might have a seizure which is premature under the circumstances that you suggest.

Harry A. Blackmun:

In this connection, it does not count to relate in part at list to the two films that one officer had purchased?

Bernard A. Berkman:

Yes, Your Honor.

Harry A. Blackmun:

Well, does that stand up?

Bernard A. Berkman:

No, Your Honor, it seems to me that the entire search has got to be looked at under circumstances in which the entirety is considered.

Harry A. Blackmun:

Yes, the searched films — those films were purchased before the search ever took place.

Bernard A. Berkman:

But Your Honor, there were other copies of the same film which were actually acquired during —

Harry A. Blackmun:

I am speaking about the two that were taken, that were purchased by the officer.

Bernard A. Berkman:

Yes, Your Honor, and I’m suggesting that there were additional copies of those very same films seized in the raid which of which we complained.

Harry A. Blackmun:

Well, suppose we invalidate that seizure.

Aren’t you still stuck with Count II with respect to the two purchased films.

Bernard A. Berkman:

I would urge not Mr. Justice because it seems to me that if you have a massive seizure then there is no deterrent or prophylactic effect at all if you merely invalidate that part of it which is — which goes beyond the appropriateness.

Because what happens then is that the police officers are unnoticed that if they exceed the bounds of the First and Fourth Amendment and in this instance with respect to the state as applied to through the Fourteenth then all that will happen in the event that it turns out that they have been excessive in their zeal is that that portion of the material which has exceeded will be returned but the original invasion, the original violation of the constitutional provisions will still have not been remedied.

Thurgood Marshall:

But Mr. Berkman suppose after this case is over, the same two policemen go in and buy two film, could he be prosecuted?

Bernard A. Berkman:

Two — I’m sorry, Your Honor?

Thurgood Marshall:

Two policemen go in and buy two more films?

Bernard A. Berkman:

Two more films.

Thurgood Marshall:

Could he be prosecuted?

Bernard A. Berkman:

It would seem to me that if those films are then focused searchingly on by a detached and neutral magistrate, then perhaps that might go —

Thurgood Marshall:

I said, they give to this any magistrate, I don’t have to — any magistrate.

Bernard A. Berkman:

Yes, Your Honor.

Thurgood Marshall:

Well, then why is the original seizure good?

Bernard A. Berkman:

Well, it seems to me Your Honor that there has to be an arrangement in which there is a focusing upon the material —

Thurgood Marshall:

Well, I thought we had it here?

Bernard A. Berkman:

In —

Thurgood Marshall:

The two policemen brought in two films —

Bernard A. Berkman:

Yes, Your Honor.

Thurgood Marshall:

— and said we want action to magistrate.

And you said that is gone.

Bernard A. Berkman:

Well, the —

Thurgood Marshall:

Or do I misquote you?

Bernard A. Berkman:

I’m sorry, Your Honor.

If that is subjected to a judicial scrutiny which passes constitutional —

Thurgood Marshall:

No, on the record of this case?

Bernard A. Berkman:

Yes.

Thurgood Marshall:

Does that count stand?

Bernard A. Berkman:

It seems to me that it cannot, Your Honor.

Because it is —

Thurgood Marshall:

Because of the?

Bernard A. Berkman:

Because it is a —

Thurgood Marshall:

What happen after that?

Bernard A. Berkman:

It is all partial of the —

Thurgood Marshall:

Yes, but now if it’s done afterwards, it’s alright?

Bernard A. Berkman:

It may be if assuming —

Thurgood Marshall:

Well, I want another difference between pro and after.

Bernard A. Berkman:

Well, when you have a mass seizure such as took place here, my understanding of the teaching of the cases here —

Thurgood Marshall:

That cleans the whole slate?

Bernard A. Berkman:

It seems to me that —

Thurgood Marshall:

Does that clean the whole prior slate?

Bernard A. Berkman:

It seems — yes, sir, I think it does.

I think —

Thurgood Marshall:

Well, why didn’t it clean the future slate?

Why is that?

Bernard A. Berkman:

Well, I think that this case has to stand on its own, Your Honor.

Potter Stewart:

But under my brother Marshall’s question, —

Bernard A. Berkman:

Yes.

Potter Stewart:

— had there just been a purchase of two items, it wouldn’t have needed to be a magistrate at all.

There could have just been a prosecution based upon those two items and that would have been up to the jury and the instructions of the judge and it would have been all.

There would not have been a search or seizure.

There has been purchase of two items, wouldn’t it?

Bernard A. Berkman:

That’s quite right, Your Honor.

Potter Stewart:

And I don’t really — what was the purpose do you suppose of this warrant which was signed on the morning of June 25, 1976 even providing for the seizure of items 1 and 2 since those two items are already been purchased and we’re in the possession of prosecuting authorities?

Bernard A. Berkman:

Your Honor, quite right.

They were — they were evidence which is already available —

Potter Stewart:

Which were already in their possession, wasn’t it?

Bernard A. Berkman:

Pardon?

Potter Stewart:

It was already in the possession of the prosecuting authority.

Bernard A. Berkman:

Of course it was and it seems to me that the only purpose that there could have been for seizing multiple copies of that film and for seizing other things in the store was to actually close the operation, prevent the exhibition and to block distribution of materials without a prior adjudication.

Potter Stewart:

And it doesn’t —-

Bernard A. Berkman:

In our judgment, it seems to us that the record demonstrates.

Thurgood Marshall:

That’s not this case, isn’t it?

Warren E. Burger:

Yes, it is.

Thurgood Marshall:

He was convicted, was he?

Warren E. Burger:

No, he pleaded guilty.

Thurgood Marshall:

Yes, Your Honor, he was convicted but that is this case.

What happened — what happened here Your Honor was that after having —

I think the example can see that you have made a very good argument for action for damages.

But I couldn’t see necessarily that that was a defense in lawsuit.

Bernard A. Berkman:

Well, Your Honor, it seems —

Thurgood Marshall:

Now, straighten me up.

Bernard A. Berkman:

Well, it seems to me first of all that in this case, there was a search and seizure which followed the purchase of two films.

Bernard A. Berkman:

Those two films dealt with only one count.

There were three counts upon which a conviction was obtained based upon the refusal of the court below to grant the motion to suppress evidence because over 400 films appear in Count I which involves a material which was taken solely as a result of what we contend was a defective warrant and a massive search and seizure and with respect to the third count, that involves the seizure of all the projectors and a number of other items, none of which were in the possession of the police officers prior to the search.

Now, it seems to me that with respect to the films that were involved in Count II, there were a multitude of films which were involved apart from the two which had originally been seized and as a matter of fact multiple copies of those two had been seized as a result of the certain seizure and so it is our contention that the bulk of, the basis of the prosecutions on all the counts came as a result of what we contend was an illegal search and seizure.

Warren E. Burger:

Now, how did the conviction come about?

Why did it rest on?

Bernard A. Berkman:

The conviction occurred after the motion to suppress was denied and the parties pleaded guilty.

Under New York procedure, it is possible to seek appellate review of the denial of the motion to suppress even after a plea of guilty.

Warren E. Burger:

Now, then going back to the suggestion or questions of several other of my colleagues, suppose we agreed with you as to Count I and III and disagreed with you as to Count II which, if I had the numbers correctly as the one, Count II rests on two films which is standing alone, you don’t question.

Bernard A. Berkman:

Your Honor, Count II —

Warren E. Burger:

Is that so?

Bernard A. Berkman:

— Count II rests on those two films plus hundreds of others.

Byron R. White:

400.

Harry A. Blackmun:

472.

Bernard A. Berkman:

Yes, sir.

Warren E. Burger:

472.

Bernard A. Berkman:

And so consequently, we are saying that those are among them but it may well be that those that were taken were the ones upon which the conviction was based and so it seems to me that they are inseverable.

Warren E. Burger:

Well, wait a minute now if we — if they tried this case, there’d be more of a problem but if they’re going to a jury verdict based on all the films, the two plus all the hundreds of others, there’s a guilty plea with respect to the two plus others under Count II, is there not?

Bernard A. Berkman:

Yes.

Yes, it is

Warren E. Burger:

And how — then how can you, how do you justify challenging the two that they were properly in the possession of the police?

Bernard A. Berkman:

Because the count itself for reasons which I do not know and which were based upon determinations of the law enforcement authorities of New York.

They included in one count, not only the two films which were purchased but also hundreds of others.

Now, it may well be that the guilty plea —

Byron R. White:

Where is the count you’re talking about?

Potter Stewart:

2 (a) and 3 (a).

Byron R. White:

So is it 3 (a)?

Well, how do you know that the two that receives were included in Count II?

Bernard A. Berkman:

Well, they were identified in the seizure materials.

William H. Rehnquist:

Well,doesn’t the guilty plea waive any defect in the information or indictment?

Bernard A. Berkman:

Well, we’re not claiming that there’s a defect in the information or indictment.

Bernard A. Berkman:

We are claiming that the materials upon which the information or indictment are bottomed where themselves obtained by illegal search and seizure and under New York procedure, even after a guilty plea, you are permitted to seek appellate review.

William H. Rehnquist:

But you can see that two items were not, I take it.

Bernard A. Berkman:

The two — two of the hundreds of items in Count II had been acquired by a purchase of the police officers and had been viewed in advance by the magistrate prior to the seizure involved here, yes.

Warren E. Burger:

And he pleaded guilty with respect to those two along with others?

William H. Rehnquist:

Yes, Your Honor.

With the understanding and it was done after the motion to suppress had been denied and under the provisions of Section 710.70 subsection (2) of the New York Criminal Procedure Code.

Potter Stewart:

And in addition to the two individual items that have been purchased, I suppose under the purported authority of the search warrant, several duplicate copies were seized under paragraph 1, 2 of the search warrant, with the —

Bernard A. Berkman:

Yes, sir.

Potter Stewart:

— with the same items?

Bernard A. Berkman:

Yes, Your Honor.

Potter Stewart:

The search warrant does by using the plural reels in both cases authorize the seizure of duplicate copies.

Bernard A. Berkman:

Right.

And in fact everything that was on the premises by way of the duplicate of those two films were seize in the course of debate.

Byron R. White:

Where — where do you find that the two copies that were purchased are included in Count II?

Bernard A. Berkman:

Well, the films were appeared in Count II and the books appeared in —

Byron R. White:

I know but tell me how do you know that among the 474 movie reels mentioned in Count II, how do you know that —

Bernard A. Berkman:

I cannot.

Byron R. White:

— the two that were bought were —

Bernard A. Berkman:

I cannot tell that, Your Honor.

Byron R. White:

Suppose they weren’t?

Bernard A. Berkman:

Well, then —

Byron R. White:

Then you have no problem?

Bernard A. Berkman:

None at all.

Byron R. White:

Well, how do you know they are even in there?

Bernard A. Berkman:

I don’t know that.

Potter Stewart:

I thought you could do that by process of going over the inventory?

Bernard A. Berkman:

Only by going over the inventory but it is true, Your Honor that in so far as —

Byron R. White:

But how would you know which is which?

Bernard A. Berkman:

You can’t tell it.

And it seems to me that because of the ambiguity there —

Byron R. White:

And if the officer bought them and they were his.

It’s — it’s a strange way then to say that to charge then somebody with possessing.

He — maybe he did possess them at one time.

Bernard A. Berkman:

Yes, Your Honor.

But if he did possess them, he possessed other copies of the same films which were seized during the course of the raid of which we complained.

Potter Stewart:

Right.

Warren E. Burger:

And we’ve said before that that’s the one appropriate way to go about it to seize a sample of the particular item.

One sample now as to two films it’s clear that that was done, is it not?

Bernard A. Berkman:

No, Your Honor.

Warren E. Burger:

It is not?

Bernard A. Berkman:

I don’t think that is clear because what happen is a result of this was that the entire inventory of the store was ransacked on the basis of what we can’t contend to have been an excuse employed in order to make it appear as though there was a search under a warrant.

Once you have two films, it seems to me that the necessity of acquiring two more from a law enforcement standpoint is nil.

The only reason for acquiring —

Potter Stewart:

Well, unless you want to charge him of the crime of possession because if you have him, he no longer possesses them.

Bernard A. Berkman:

Yes.

On the other hand, it seems to me that there are abundant opportunities to charge a storeowner under these circumstances with either these films of others on the basis of the conditioning of the store and its inventory.

Byron R. White:

Well, there’s nothing wrong with him, nothing wrong with him going back and buying either 10 more books and I suppose that if the search warrant procedures were valid there’ll be nothing wrong will properly carried out, there would be nothing wrong with seizing him under a search warrant if the post procedures were proper.

Bernard A. Berkman:

I think that’s right.

As a matter of fact, in view of the fact that only three counts were and there would be no limitation upon the law enforcement power of the State of New York in terms of what it was that was doing under these circumstances in controlling the distribution of what it claimed to be obscenity.

Now, we urge further that the Fourth Amendment protects the petitioner against the general search and mass seizure which took place here.

That just because the petitioner opened its store to invite customers into his premises to buy merchandise does not mean as the State of New York now contends that it’s entire expectation of privacy is forfeited to the occupation of its premises by the police force.

Warren E. Burger:

Suppose this had been done by one officer? Well, without the 10 —

Bernard A. Berkman:

It seems to me that depends upon what it did.

If he came —

Warren E. Burger:

Suppose one officer did everything that the 11 officers did?

Bernard A. Berkman:

It would seem to me then that it would still not be sufficient, Your Honor for the reason —

Warren E. Burger:

Because the 11 is — 11 or 1 is not really crucial to the case?

Bernard A. Berkman:

No, I think that the massive number only has to do with the — with part of the facts involving the pervasive seizure and control and domination of the entire enterprise.

The fact is that these police officers did not limit themselves to the position of a customer and the premises.

Indeed, if a customer on the premises had come in and ransacked the material and taken the books off the display shelf and put them on the floor and torn out the cellophane covers, and stood in front and stopped customers from coming in and taking their names and addresses and rummaged through business records and had done all the things that these police officers did, these store proprietor in my judgment would have had the right to call these very policemen and eject them and to bring actions against them for trespass.

Bernard A. Berkman:

And so consequently, they do not stand in the shoes of a normal customer and for that reason, it seems to me that a store proprietor does not move his expectation of privacy with respect to the fact that there will not be a police force which will do the things which have been done here.

Now, it seems to me, Your Honor that we must first take a look at the warrant.

The warrant itself demonstrates nothing by way of probable cause with respect to any other item than the two films themselves which were purchased and reviewed by both the judge and the police officer.

There is a list of things to come, predictions of things to come in Section 3 of the warrant which says that there are bunch of other items that are to be seized as well but they were absolutely blank at the time of the search and seizure.

Byron R. White:

Well, do you think that if a magistrate accompanies an investigator to a store and he examines books on the shelves and looks at them as much as he wants and then goes back to the office and issues of search warrant to seize one copy of each of the following titles as evidence and he says I have searchingly focused on the issue of obscenity and think there’s probable cause to believe they’re obscene.

Bernard A. Berkman:

So long as he does not use his judicial authority to effectuate the search during the time that he’s examining the material.

If he acts in a way that the judge in Heller versus New York did, then we would have no objection to that.

What — what occurred here however is that they took possession of the store and seized its entire contents before any of that judicial review occurred, and there’s another problem too.

And that is that when a magistrate issues a warrant after himself have participated in the search and seizure.

He becomes a part of —

Byron R. White:

Yes, but if he comes to the store and if he does nothing in the store that any other member of the public could not do.

If he does nothing but what member of the public could do if that’s all he did, you would have — that would be different.

Bernard A. Berkman:

And he has not use the force of judicial office and he has not effectuated the search.

William H. Rehnquist:

Your client told he didn’t have to put a quarter in the movie reels, didn’t he?

Bernard A. Berkman:

Well, as a matter of fact, that is what the record does reflect Mr. Justice Rehnquist.

On the other hand, however, at the time that the police officers arrived in force, they came and announce that this individual was under arrest.

They read him his Miranda rights.

They also announced that they were going to search the premises they produced what purported to be a warrant and under those circumstances it seems to me that he was acquiescing to authority and not consenting to anything that would have any constitutional import.

He was not a free agent under any circumstances during the six-hour period when he was on the premises the officer quite candidly admitted that he was not free to leave, he was under arrest and he was in a situation where a number of officers were all over the store and it would seem to me that the interests of safety and concern might have cause him to make such a comment without in any way having him to be voluntary consent.

Byron R. White:

But that wouldn’t be — that wouldn’t reach taking the cellophane or the plastic wrappers of it?

Bernard A. Berkman:

There was never any purported consent of any kind to that, they just came in and took the merchandise off the shelves, piled it on the floor, tore of the coverage because there was a cellophane seal on them which prevents anyone from opening the package and looking inside.

And consequently, there was no suggestion that anyone offered an invitation to the officers to open those seals or to look at business records or to do the myriad other things that occurred during the course of this record.

Warren E. Burger:

Mr. Berkman, for the constitutional purposes of this case and laying aside for the moment this special consideration given to books as we’ve indicated in our opinions, is this case any different from what it would be if a warrant had been issued for to pick up two sample cans of spinach on the ground they have information or reason to believe that they might be contaminated and the two cans of spinach were seized and then all the things that happened here with reference to the other merchandise occurred.

All of the canned goods in the grocery store and all the red and everything else was taken.

Is it fundamentally any different?

Bernard A. Berkman:

Well, it would seem to me it’s fundamentally different because of the First Amendment —

Warren E. Burger:

Well, I said except for that, they never signed.

Bernard A. Berkman:

And also, it is unclear when a criminal prosecution occurs as to whether or not the cans of spinach are even involved.

I would think that that would be a substantial difference.

I think that if there’s probable cause to seize the spinach in a numbers that you suggest, that in itself suggest no Fourth Amendment problems and so long as the materials are particularly described, I don’t see that that raises any —

Warren E. Burger:

But the Food and Drug Administration does make seizures at times, do they not?

Bernard A. Berkman:

I understand that.

I understand that, Your Honor.

Warren E. Burger:

But I take it from your point of view they can’t seize all the spinach in the store until they determine on the basis of sampling that some of it is contaminated.

Bernard A. Berkman:

Well, except for the considerations are probable cause in particularity, Your Honor, which are requirements with respect to all Fourth Amendment seizures.

It would seem to me that you have special prior restraint problems when you have First Amendment material which doesn’t apply to spinach.

Warren E. Burger:

But so far the Fourth Amendment concerned, there is no difference, is it?

Bernard A. Berkman:

So long as the particularity and specificity and probable cause requirements have been met, it would seem to me.

And then of course, I think it would depend upon whether or not a warrant were required and all of those considerations, I think that would —

William H. Rehnquist:

One of the reasons — isn’t the principle is that they have cellophane wrappers or the books to prevent freeloaders from reading them and without buying them.

Bernard A. Berkman:

Well, there’s nothing in the record on that subject but I would suppose that that might be affected.

William H. Rehnquist:

Well, are you saying then that a police officer has to buy the book before he can inspect it?

Bernard A. Berkman:

I think that either he has to acquire in some lawful way or it may well be that a customer or somebody else has acquired certain material.

William H. Rehnquist:

But you say a police officer can inspect the book — cannot inspect the book on the premises by tearing the cellophane coverall.

Bernard A. Berkman:

It seems to me that he’s limited to performing in the way that a customer will be permitted to conform if he exceeds that then he’s acting as a policeman and not as a customer and exceeds any such responsibility, and I think that becomes a seizure.

Now, I think —

Warren E. Burger:

The mere tearing of the wrapper becomes a seizure?

Bernard A. Berkman:

Yes, I think that as this Court has indicated in Terry and recently in Delaware against Prouse, very little is required in order to effectuate a seizure either of a person or —

Warren E. Burger:

In fact, it could be like breaking the can of spinach open with a can opener and —

Bernard A. Berkman:

A can of spinach could be, Your Honor or opening the trunk of Mr. Chadwick in the Chadwick case.

You know, any of those items seems to me effectuates a —

Thurgood Marshall:

The real difference between a customer and a policeman is the customized money.

Bernard A. Berkman:

Well, —

Thurgood Marshall:

Isn’t the real difference?

Bernard A. Berkman:

Well, I apparently —

Thurgood Marshall:

The customer buys something and pays for it?

Bernard A. Berkman:

That’s right, Your Honor.

But it acquires in a lawful manner and that of course is attached to him which I think is constitutional implication.

Thurgood Marshall:

(Voice Overlap) you said it is law but it is not but it is warning.

The policeman implied (Inaudible) while in there place, didn’t he?

Bernard A. Berkman:

Well, except for the two books that they originally purchased.

Thurgood Marshall:

No, I mean when the others went in with the magistrate.

Bernard A. Berkman:

That’s right, they didn’t know —

Thurgood Marshall:

Nobody then — isn’t that the real difference?

Bernard A. Berkman:

Well, I think that the difference is because of legal acquisition and acquisition by something other than the authority of the state which makes the constitutional difference.

The attempt by the state to deal with the warrant by after the fact adding 14 pages to a two-page warrant demonstrates the importance of their concern at the warrant be the basis upon which state attempted to search.

Warren E. Burger:

Very well, Mr. Berkman.

Mr. Parker.

Richard L. Parker:

Mr. Chief Justice and may it please the Court.

My name is Richard Parker, I’m an Assistant District Attorney from Goshen, New York, that’s a small upstate county.

The legislature of the State of New York has declared an uncertain terms how a public policy to be the protection of moral decency and in furtherance oft this public policy it has authorized the various units of the state to prosecute criminal possession of promoting obscene material.

In order to effectuate this police policy against the commercial establishment which has a large number of obscene items and obscene material, we have tried after studying this Court’s decisions to come up with the procedure which on one hand will protect First Amendment rights and on the other hand gives us an opportunity to effectuate this legislative policy.

In effect we try to do is following a fair middle ground.

What we did in this case was have a police officer go to the store and look around the store.

He then bought a small sample of two items and to clarify for the record, Mr. Mandagas, the clerk of the store was charged for possessing with intent promoting these two items on the day that these items were sold.

The officer —

Potter Stewart:

Where do you see that?

Richard L. Parker:

No.

Potter Stewart:

Where do you see that charge in the appendix?

Richard L. Parker:

No, that’s a footnote I believe in my brief.

Mr. Mandagas case is not on appeal.

Potter Stewart:

I see.

Richard L. Parker:

He subsequently pleaded guilty to disorderly conduct, was given a conditional —

Potter Stewart:

I see.

Richard L. Parker:

— that was given a conditional —

Potter Stewart:

For possessing those two items on the day they were purchased?

Richard L. Parker:

Well, promoting those two items on the day they were purchased.

Yes.

Byron R. White:

So, they aren’t included in these 400 and some films?

Richard L. Parker:

They are — the same films are included but those two items are —

Byron R. White:

How do you know they are?

Richard L. Parker:

From the inventory.

The inventory and the search warrant tells you at the inventory least all 472 items which the reels and films were list all the magazines and list the names of all the films that were —

Byron R. White:

And you certainly wouldn’t list these two items that have been bought on the search warrant or an inventory of things that have been seized in the search warrant cause they weren’t seize in the search warrants before.

Richard L. Parker:

No, but other copies of the — that were —

Byron R. White:

I know but I’m talking about these two copies.

Richard L. Parker:

No, right.

Were these two copies —

Byron R. White:

Is that so — so that those are out?

Richard L. Parker:

Yes.

Byron R. White:

That’s all I wanted to know.

Richard L. Parker:

Yes, I want to clarify that.

Byron R. White:

So the only ones — so the only ones on which this conviction rest are the ones that receives in the search and seizure under the warrant.

Richard L. Parker:

Yes, and if you look at the criminal charges, the basis of these charges are promoting the items on June 20th the date of these seizure.

Byron R. White:

Now say, let’s assume that when these two films were bought and they were brought back to the judge, suppose the judge had look at and them and said I have now focused on the nature of these articles.

I’ve read them from cover to cover.

There’s probable cause to think that they are obscene.

I hereby authorize you to go back to the store and seize all other copies of these two books.

Do you — tell me what case in this Court would warrant that.

Richard L. Parker:

I don’t believe any case in this case Court would warrant that alone.

Byron R. White:

As a matter of fact, the client — the cases that would say that would be forbidden?

Richard L. Parker:

Yes, but I think there’s an important distinction in this case and that was that when we went in to this bookstore and before there was any seizure, we entered the store was open to the public.

Byron R. White:

Yes.

Richard L. Parker:

When we went in there, the clerk was given the warrant and was told that he had the right to an immediate adversary hearing as soon as he would be ready or the owner of those materials —

Byron R. White:

Well, I know but before the hearing — whenever the hearing was either that it was tomorrow or this afternoon, you took all copies out of circulation?

Richard L. Parker:

Temporarily, we did, yes.

Byron R. White:

Well, tell me some case that warrants that —

Richard L. Parker:

I believe under Kingsley Books, we can do that.

The Kingsley Books, there was a case where more than one copy of the book was taken.

Byron R. White:

I thought there had to be an adversary hearing before you completely remove from circulation all copies of materials like this.

Richard L. Parker:

Well, I don’t believe, I believe Kingsley Books are the Court held that you could temporarily take those items and then hold an adversary hearing afterwards.

Byron R. White:

Now, the Kingsley Books was interim in injunction, it wasn’t seizure?

Richard L. Parker:

Well, the —

Byron R. White:

Because what we’re talking about is Marcus and Quantity of Books.

Richard L. Parker:

I believe this is different from Marcus and Quantity of Books.

Byron R. White:

Different from what my brother White has just been suggesting?

Richard L. Parker:

Yes.

Byron R. White:

How is it different?

Richard L. Parker:

It’s different because the items were taken as evidence, a judge had viewed the items and made a probable course determination plus it’s different because after they were taken —

Byron R. White:

No, but Marcus and Quantity of Books said you can’t seize the whole group without having the adversary proceeding first.

Richard L. Parker:

Well, I believe they said you cannot seize them for destruction purposes.

We were seizing them for evidence purposes to bring a criminal prosecution and we were going to bring that as soon as we possibly could and I should add that at no time did the petitioner in this case ever asked for any hearing as to the obscenities.

As a matter of fact, he pleaded guilty as to the obscenity of all the items.

Byron R. White:

Well, after you — after you denied this motion to suppress you took advantage of your New York statute which spend them do that.

Richard L. Parker:

That’s right but under our New York statute, he could have a trial on the issue of obscenity and if he —

Byron R. White:

I know but New York statute permitted them to do just exactly what he did.

Richard L. Parker:

That’s right but it certainly did in anyway inhibit from also having a trial as if he thought the items were not obscene.

He could have had that trial also.

The reason I feel that this procedure is fair and proper is because we have the safeguards of having a prior judicial officer look at the interior before it seize — the officer had an — the judicial officer first had —

Thurgood Marshall:

Well, the judicial officer at the — spent six hours in there, was he still a judicial officer?

Richard L. Parker:

I believe he was —

Thurgood Marshall:

Or was he a bias person?

Richard L. Parker:

I think that —

Thurgood Marshall:

That to be in there looking at the material for six hours, wouldn’t he be influenced one way of the other?

Richard L. Parker:

Oh, I believe the material may influence —

Thurgood Marshall:

Wouldn’t he be influenced one or another?

Richard L. Parker:

I think that material may influence but I don’t think it changed his being bias.

I think the record shows that all times he did what he thought should be done.

He was leading the party.

In other words, he made the determinations what should be taken and what should not be taken.

Richard L. Parker:

He made the determination whether or not an item should be taken.

Even towards the end, I think it’s clear from the record.

Thurgood Marshall:

If you had a hearing who decide over the hearing?

Richard L. Parker:

There would have — well at the hearing, there would have been a different judicial officer presiding this.

Potter Stewart:

Oh, he authorized it after the fact, that’s the problem.

Richard L. Parker:

After — well, I don’t believe him.

Potter Stewart:

They would break the cellophane and bring the book to him and he’d say okay, I had that today, yes, that’s okay.

Seize that.

But they’d already seized it.

Richard L. Parker:

No, I disagree that they had already seized anything.

As a matter of fact, I feel if the judge had gone through this entire store and determine that everything —

Thurgood Marshall:

Well, wasn’t it, wasn’t it testimony that he wasn’t free to leave, he was under arrest?

Richard L. Parker:

The testimony was that he was told that there was award for his arrest.

He was free to move freely throughout the store.

He was brought a meal.

He moved freely throughout —

Thurgood Marshall:

Well, what do you mean when you say you moved freely throughout the store?

Doesn’t that mean, you’re not free to move outside?

Richard L. Parker:

Yes, he would not have been free to move outside.

And our —

Thurgood Marshall:

So there was a seizure when they walked in there, wasn’t it?

Richard L. Parker:

There was a seizure of his person but not a seizure of the material.

Thurgood Marshall:

Well, what do you need 11 for?

Richard L. Parker:

Well, the reason —

Thurgood Marshall:

Was he a rough man or something?

Richard L. Parker:

No, I think the reason that you had all these people here was to try to do the search.

Thurgood Marshall:

These weren’t people.

These were police.

They are different from people.

Richard L. Parker:

Oh, I have considered policeman a person, Your Honor.

Thurgood Marshall:

They are different from the average person.

One is they have a gun.

Richard L. Parker:

Yes, they do.

Thurgood Marshall:

That’s different from — do you have a gun?

Richard L. Parker:

No, sir.

Thurgood Marshall:

Well, that’s different, isn’t it?

Well, when you send 11 police in there, you say isn’t that seizure?

I wonder what is it, a visit?

A friendly visit?

Richard L. Parker:

I think the reason you have the number of these people is so you can expedite the procedure as quickly as possible.

We have people there.

You have one person who was there who was recording what the judge was doing.

There were other people there who were gathering the items that the judge had told them to seize.

There were other people there who would put things in order so the judge can review as quickly as possible.

There were other people who were at the front of the store to find out —

Thurgood Marshall:

Well the things that they put together for the judge were they seized?

Richard L. Parker:

No, they weren’t, I don’t believe.

Thurgood Marshall:

What were they, detained?

Richard L. Parker:

He makes — well, they were in the store, they were left in the store, they were in a pile and they would —

Thurgood Marshall:

They put it — could the owner take them away from it?

Richard L. Parker:

I suppose he could of if he wanted to but —

Thurgood Marshall:

It would be big enough?

Richard L. Parker:

What?

Thurgood Marshall:

It was big enough?

Richard L. Parker:

I don’t think they would afford them.

There was no — no indication of that.

But —

Potter Stewart:

But my problem is that a warrant by definition is a prior authorization.

It’s a prior authorization issued upon probable cause.

Particularly, describing the place to be search and the thing, there are things to be seized and there was not a prior authorization here.

Potter Stewart:

Here he says the judge in the store there first ordered the police to rip off the sealed plastic which completely enclosed each of the magazines and many of the books in the store.

Then he looks through him.

But that’s not a prior authorization.

There was a seizure before the authority to do it.

Richard L. Parker:

Well, I think if you look at it —

Potter Stewart:

That’s the problem because a warrant by definition is a prior authorization.

Richard L. Parker:

The State of New York has upheld this which is in effect an oral warrant and they have upheld under this circumstances where you’re dealing with books and films and magazines where you have to have a judge go in and look at it prior.

They have said and they have —

Potter Stewart:

That’s the reason this case is here because the New York courts upheld it?

Richard L. Parker:

Yes, but they have —

William H. Rehnquist:

Mr. Parker, you — when you’re making a search incident to arrest and you find a gun on a man, you don’t have to pay the man the price of the gun, don’t you?

Richard L. Parker:

No, you don’t, Your Honor.

But the point I’d like to make there is that what we’ve — the function of a warrant, the purpose of the warrant as you’ve stated Mr. Justice —

Potter Stewart:

Is prior authorization.

Richard L. Parker:

If one foot have prior authorization of probable cause and to the limit the police discretion by particularly describing what they should take.

Potter Stewart:

Correct.

Richard L. Parker:

This judge, looked at the material —

Potter Stewart:

After it had been seized?

Richard L. Parker:

Well, I submit it wasn’t after it had been seized.

Potter Stewart:

Well, —

Richard L. Parker:

Because I see — in other words, I submit that there was no seizure of material that was left in the store.

There were many items that he looked at determined were not obscene and he left them in the store.

Byron R. White:

Now, how about looking in — how about taking the cellophane off of the package?

Isn’t that a search?

Richard L. Parker:

In a way it’s a search but —

Byron R. White:

But in a way, you certainly just can’t pat it down like you can if you — and tell if it’s obscene.

Richard L. Parker:

That’s — well, but you see these magazines —

Byron R. White:

You know, sometimes you can pat people down and discover and see if the — but you can’t search them.

Here they took cellophane off the packages and actually looks the books.

Richard L. Parker:

Yes, but they were taking a cellophane off the books which had obscene photographs at the front of the books which is almost identical to seeing a bold outside someone in patting him down that.

Richard L. Parker:

I believe that the judge given the nature of this market would have had the right to after seeing an obscene photograph asked the police —

Warren E. Burger:

We’ll resume there at 1 o’clock, Mr. Parker.

Counsel, you may resume.

Richard L. Parker:

Mr. Chief Justice, and may it please the Court.

I respectfully submit to the Court that the seizure of more than one copy does not invalidate the entire search.

It must be remembered that under New York law, a person is prosecuted not for merely possessing the item but for promoting the item.

Now, obviously this is a commercial.

Byron R. White:

That’s an understatement seizing more than one, isn’t it?

You seize them all.

Richard L. Parker:

No, we did not seize everything.

We left many magazines but —

Byron R. White:

I know but did you seize all the copies in any magazine?

Richard L. Parker:

Yes, any — yes, anytime that —

Byron R. White:

So that was rather an understatement?

Richard L. Parker:

Anytime the judge after viewing the item felt that there was probable cause to believe —

Byron R. White:

Do you seize all of the item?

Richard L. Parker:

He seize every copy in that store but there was never any claim made that this person did not have access to other items or could not bring him in the next day.

Byron R. White:

But he could not sell those particular items?

Richard L. Parker:

He could not sell those items.

That’s correct.

Warren E. Burger:

Didn’t that have some resemblance to prior restraint?

Richard L. Parker:

Oh, obviously —

Warren E. Burger:

They took all the books of a particular category.

They couldn’t sell them.

Richard L. Parker:

He could not sell them.

That doesn’t mean they were not available to the public in the area.

There were other stores —

Warren E. Burger:

But I’m talking about restraint on him.

Richard L. Parker:

Yes, is it — yes, there was but that —

Warren E. Burger:

Do you know?

Richard L. Parker:

— res — right, but that restraint I submit was a temporary restraint because he had the right to a full hearing and also that restraint was for valid evidentiary purpose to show that he was promoting the item.

Under our law, there is a presumption that if you possess six or more of the same items and it’s presumptive evidence that you posses with intent to promote and what we had to show aside from that fact that the items were themselves obscene that this person was promoting obscenity on the day in question.

So there was a valid evidentiary reason to seize them.

Potter Stewart:

If you didn’t have to seize them all to show that, they’re actually been testimony.

Richard L. Parker:

Well, obviously there could be testimony but the best evidence would be shown in the jury the fact that you have this many items.

Warren E. Burger:

Or if you want to be a little more sure, maybe it takes six plus, one plus six?

Richard L. Parker:

Well, if you, as you can see for more brief, very few, I think only two or three case and they seized more than six.

Most of the items of the vast majority only one item was seized and then there are small time you took two of the items.

Most of them are one or two items were seized.

Very few was there more than six being seized of more than five being seized.

Now, the other method, another point should be made is that you have three separate pleas of guilty and under the third count for the films in the pictures.

There were no duplicate seizures there.

That count was entitled to separate that was the first part of the search and there were no duplicates.

The only thing that was seized was that one copy of the film that was being displayed to the public.

Thurgood Marshall:

Could that be that there were no duplicate?

Richard L. Parker:

What?

Thurgood Marshall:

Could it be that there weren’t any duplicates?

Richard L. Parker:

There weren’t duplicates.

There was one copy that was there and that was what it was seized.

Thurgood Marshall:

That’s right.

Richard L. Parker:

Yes, Your Honor.

Thurgood Marshall:

So they didn’t more able to seize, it wouldn’t matter?

Richard L. Parker:

Probably.

Potter Stewart:

And the projectors were seized?

Richard L. Parker:

Yes, the projectors were seized.

Again, to show promotion.

Now, the other method that’s been suggested is to go in and to buy the item but unfortunately in a small upstate county like we have, we don’t have the funds to go and then buy all the obscene items that are being displayed and exploited to the public because the affidavit of petitioner in support of his allegations for a search warrant.

He — he said that we took $15,000.00 worth of material, that’s what he says his quest was.

I’ve never told that it up.

But assuming his figure is correct our entire investigatory budget for the whole county to fight all crime in our county is only $20,000.00.

Richard L. Parker:

We wouldn’t have enough funds, public funds to go and expend to buy all the obscene material that’s being promoted.

So the only — I mean we cannot go in there and buy one or two copies or buy one copy of each item that is just not enough money in our budget to do it.

This is really the only effect of way we have to enforce our legislative policy.

Byron R. White:

What was the — there was a plea of guilty?

Richard L. Parker:

Yes.

Byron R. White:

What — there never was a sentence.

Richard L. Parker:

Yes, the sentence was a fine of $1,000.00 on each count.

Byron R. White:

On each separate case?

Richard L. Parker:

Yes.

Byron R. White:

Separate count?

Richard L. Parker:

Each separate count had a fine of $1,000.00 and that fine has been paid.

William H. Rehnquist:

And how many counts were there?

Richard L. Parker:

Three.

Three separate counts.

Thurgood Marshall:

So now you have $22,000.00?

Richard L. Parker:

What?

No, we don’t get that fine money.

That goes to the state.

I submit that the procedure we employed here is a limited procedure which protects First Amendment Rights.

Harry A. Blackmun:

Protects them?

Richard L. Parker:

Yes.

And first of all, the entry into the store under this procedure is limited to stores when they’re open to the public.

It’s the items that are being viewed are limited to the judge viewing items that are being openly displayed to the public.

You have a judge or a judicial officer who was viewing the item before anything has taken from the store —

Byron R. White:

After he rips it open?

Richard L. Parker:

After — yes, after it’s been ripped open.

But you have a cover on this which gives him I submit probable cause to make further inquiry to see if the item is obscene especially after a police officer has gone in has found out that this —

Byron R. White:

Eleven police officers?

Richard L. Parker:

No, initially one police officer goes in, he brought a small sample —

Byron R. White:

He needed the support of 10 others?

Richard L. Parker:

Well, to make the search.

He needed that support in order to make it as quick as possible so that it would be the least amount of restraint as possible.

Well, restraint in the sense it takes time if you have one judge.

If the judge goes in by himself, it’s going to take a much longer to go everything to look at everything and to gather the staff and take it out of the store.

So then petitioner would claim that it was a longer restraint.

Thurgood Marshall:

But it took him six hours, didn’t it?

Richard L. Parker:

It did take him six hours cause he had a —

Thurgood Marshall:

Well, I guess if it was only one, it would be a couple of days, wouldn’t it?

Richard L. Parker:

I believe it would take much longer, I can’t tell you how long it would take.

But I —

Byron R. White:

Off — no, I get a new member of the public would have the privilege of going in and looking at all these movies and these machines.

Richard L. Parker:

Certainly, they have the privilege of going and looking at the movies and the machine.

Byron R. White:

That’s for a quarter?

Richard L. Parker:

Yes.

And the judge in this case and the record clearly indicates that the judge offered to put a quarter in every machine and the clerk of the store said it won’t be necessary.

I can turn them all on so it will be quicker.

And he voluntarily turned them on.

Byron R. White:

So, you say that wasn’t the search?

Richard L. Parker:

I’m saying that the viewing —

Byron R. White:

That wasn’t the search because any member of the public could have done it with the court.

Richard L. Parker:

What I’m saying is that the viewing of the material which is openly displayed to the public, there is no reasonable expectation of this petitioner that the public will not see this material.

I’m saying that that viewing is not —

Byron R. White:

All there is on — there is in the cellophane package with it unless the public buys it and pays the money?

Richard L. Parker:

Yes.

But in other words, the items are not being hidden from the public, it’s not — when you think of the word search, you think of looking for substance being hidden, this is not material that’s being hidden.

This is material that’s being displayed openly to the public in areas of the store open to the public.

At no time that any member of law enforcement where this judge ever go into a storeroom or to see what was not being displayed to the public, it was limited to the public areas that items that were openly displayed to the public.

Thurgood Marshall:

What happened to business records?

Richard L. Parker:

The business records were seized to show —

Thurgood Marshall:

But why they didn’t

Richard L. Parker:

— to promotion —

Thurgood Marshall:

I mean they were not in the public area, were they?

Richard L. Parker:

They were behind the front desk, I believe.

Thurgood Marshall:

Yes, I mean you said everything was out in the public area but —

Richard L. Parker:

Everything that he was charged with possessing under this statute under this information was limited to public areas.

Thurgood Marshall:

And — but they did go into the private area?

Richard L. Parker:

They went behind the counter, yes.

Thurgood Marshall:

But what right did they have behind the camera?

Richard L. Parker:

Cause that’s where the clerk of the store had stationed himself.

Thurgood Marshall:

Do I understand that the man you said the only thing they did and the only place they went was to ride a public land?

Richard L. Parker:

Yes.

Thurgood Marshall:

Now, you admit they did go to some place that the public didn’t go.

Richard L. Parker:

The clerk was there —

Thurgood Marshall:

Is that right?

Richard L. Parker:

The clerk —

Thurgood Marshall:

Is that right?

Richard L. Parker:

They went behind to arrest the clerk.

Thurgood Marshall:

And the public didn’t go behind?

Richard L. Parker:

No, I don’t believe the public would go behind it.

But they did go behind it to arrest him, the clerk.

Now, I would say that at the time of entry based upon the fact that the officer had learned from the clerk that the store was selling this sex-type material on June 20th when he bought two items and the judge had in fact reviewed two of those items in their entirety that the judge certainly had probable cause to believe they’re going to be other items in the store of a commercial being exploit on a commercial nature which was sexually obscene material.

And I think this may give him on other basis.

On that claim, that was the basis he used but I am claiming that he certainly have reason to look at other items in the store.

Had a reason to believe that in this type of market which is exclusively selling sexually explicit material that the he certainly had a right to look at whatever was being displayed to the public to make an initial screening so that he could determine for himself whether or not there was probable cause to seize it.

Byron R. White:

Now, let me get it clear.

Do you say that all of the movies — movie reels in Count II are different?

Richard L. Parker:

Not all are different.

There some duplicates.

Byron R. White:

Well, anyone that he looked at that he thought was obscene he seized all copies of that film?

Richard L. Parker:

Yes.

Byron R. White:

Okay counsel.

Richard L. Parker:

Yes, he did.

But the issue of the way he focused on the material which has been raised by counsel has to be under — it must be emphasized that this focusing the market where this was done that the judge had first seen two short films in their entirety and then gone into the booths and seen parts.

And I say its substantial part of many of each of these films and continuously would see films which were just depicting one sex act after another.

I submit that in this type of market, a judge could do enough of initial search without having to see the entire item to know that there’s probable cause to believe it’s obscene and to bring it into court so there can be a criminal prosecution —

Byron R. White:

Are you — are there any cases, I think there is a case that involves projector — seizing projectors but do you know of any case that involves seizure of all projectors so that the person in the business of showing movies has to order a new projector in order to show anything?

Richard L. Parker:

No, Your Honor.

I’m not aware of anything.

Byron R. White:

Because even — I take it you left him some films didn’t you?

Richard L. Parker:

I don’t believe he was left any films.

I believe all the films were taken out of the store.

They were books and magazines were left in the store.

Byron R. White:

So, but if he wanted to show some films that weren’t obscene, he wouldn’t still wouldn’t have any projector, would he?

Richard L. Parker:

He would not have, no.

But I think that throughout the procedure that we were not trying to suppress the material or try to close the store, what we try to do from the beginning was find a —

Byron R. White:

He point down the moving picture part of the store for sure.

Richard L. Parker:

We did do it temporarily but what — the point was from the beginning, we try to do this in such a way that we could effectively carry out the legislative mandate to protect more of decency but we did it in such a way that this individual was first of all he was given written notification of his right to an immediate hearing before any seizure at all.

That was in the warrant.

He was —

Byron R. White:

What did you have after you seized 400 films that you wouldn’t have had if you’d only seize 10?

Richard L. Parker:

Well, what you would it — the diff —

Byron R. White:

So you’d seize 10 and one projector and then he went to trial on that. What would you have had —

Richard L. Parker:

You would not have a judicial ruling on whether or not the other 390 or whether it is the other 208 different films whether or not those were obscene.

Each film is a different film.

William H. Rehnquist:

You ran the risk of those particular 10 would be found to be not obscene I suppose.

Richard L. Parker:

If they’re found not obscene then we leave him and he can display them openly and promote them to the public if there’s a ruling that they’re not obscene.

We have no — we don’t mind that but we’re trying to do in effect is find an effective way to protect more of decency given the fact they have a large commercial store which is selling a vast number of obscene items.

We want to bring all these items into court as quickly as we can, as efficiently as we can so we can get a full prompt judicial review as to each of these items to determine that they are in fact obscene.

And before we do that, we ask the judge to give as initial determination that they were in fact obscene.

That there was probable cause to believe they were obscene and then we gave them the right to litigate it.

Byron R. White:

On this thesis, you didn’t need more than one copy of each —

Richard L. Parker:

Not, but you did need it because they are brought in for criminal purposes and the criminal law is not mere possession.

It’s promoting and we have to also show promoting.

Unless, there’s going to be stipulation to promote it.

Byron R. White:

Well, you can have evidence to how many they were.

Richard L. Parker:

That’s true.

Byron R. White:

You don’t always just believe witnesses there in Goshen, do you?

Richard L. Parker:

No, they don’t but the best evidence is always having the actual material there.

And I would submit that since they had the right to have it, to get the hearing immediately as soon as they were ready that a temporary restraint of this sort would not invalidate the entire search.

Perhaps the Court would order that the other materials should have been returned but if the violation of the law in this case is that they took too many copies under the First Amendment then I think the appropriate remedy would not be exclusion under the Fourth Amendment of the entire search.

But would be to order the court, order the police to return the extra copies and then let the conviction stand.

Now, I think that if you look — that looking at the entire procedure that we follow in order to try to find a fair, middle ground to bring all these items into Court that this is the only procedure, fair procedure that you can use.

There’s no other procedure that would effectively work to bring this vast number of items into court.

You can’t subpoena the items because if you try to subpoena, you should come to the exact same situation that if you wait for the issue to be joined, you ran the risk that the items are going to disappear, either claim that they been sold in due course or in this case, we deal with a corporation that’s an out-of-state corporation that runs a store if we subpoena.

Make the subpoena just take against that corporation as in fact as happens in this case, he changes corporate identity and there’s further delay so we lose the items.

Byron R. White:

Suppose you’d seize a copy of a book of which there were 100 copies in the store and you had a trial two days later, adversary trial that was determined to be obscene.

You could go back and get all the rest of them?

Richard L. Parker:

That’s correct, if they’re still there.

Byron R. White:

And what would be the — if they were still there.

Richard L. Parker:

That is the problem, if they are still there.

Harry A. Blackmun:

What’s the harm if they’re not still there?

Richard L. Parker:

Well, the harm if they’re not still there is that we’ve gone as we allowed the person —

Harry A. Blackmun:

Verdict convicted him now this two-day trial?

Richard L. Parker:

Okay.

Okay, you allow him in the interim to continue to sell —

Harry A. Blackmun:

Immaterial this anymore.

Why hypothesis they gone out of state.

Now how is your state hurt by that?

Richard L. Parker:

What?

No, they haven’t gone that.

Richard L. Parker:

They don’t go — they don’t have to go out of state.

The corporation only have to do is change the corporate name.

They went to build it.

An out-of-state corporation comes in and says, we’re running —

Harry A. Blackmun:

By changing the name, do they move the books?

Richard L. Parker:

Well, now you have a new corporation that you have to go after.

You have to start all over again which means that is going to be judicial to language which means that material can be sold in the interim.

Thurgood Marshall:

And you’d be inconvenienced?

Richard L. Parker:

I think that – I think that —

Thurgood Marshall:

And you would be inconvenienced?

Richard L. Parker:

Yes, I think —

Thurgood Marshall:

It means for prosecution?

Richard L. Parker:

It would be much difficult certainly.

Thurgood Marshall:

Yes, you’d be inconvenienced.

Richard L. Parker:

There’s certainly be difficulties involved in that — but I think —

Harry A. Blackmun:

And consider civil remedies against this people or you get an injunction against operating?

Richard L. Parker:

The getting an injunction would have been — is completely analogous in order to insure that the evidence was there, you have to get a temporary restraining order to get the restraining order or to keep them there you would have to, I would submit bring the judge to the store to at least make an initial determination that there’s reason to get the restraintor recieve a restraint —

Harry A. Blackmun:

Why don’t you just subpoena the material if he’s filed a civil suit?

Richard L. Parker:

Because if you subpoena the material – well, if you subpoena the material, you have judicial delay, you have the problem that if you subpoena it, you have to have a reason to subpoena it so you have to have initial determination —

Harry A. Blackmun:

Or you when you — why do you need a reason to subpoena if you got a couple of copies that are obscene?

Richard L. Parker:

But then you are going to have to subpoena the other copies which are in the store and you haven’t review them initially yet unless you get a judge to go in and initially review them so you have probable cause —

Harry A. Blackmun:

You don’t have discovery in New York?

Richard L. Parker:

Not, no, we could not.

Harry A. Blackmun:

If you don’t have discovery in New York?

Richard L. Parker:

We couldn’t discover it like that.

We would have to have a judge initially view it, get a temporary restraining order to maintain the status quo and enjoin issue and that’s really what we did here.

We took it we temporarily have it in our possession until the issue was joined.

Thurgood Marshall:

In the State of New York, is there any other procedure that allows the magistrate to do what was done here?

Richard L. Parker:

I’m sorry, Your Honor, I don’t follow when you say —

Thurgood Marshall:

Well, if you got a bucket shop running, can the magistrate go into the bucket shop and open up all the books and look at them?

Richard L. Parker:

I believe he have a booking shop the magistrate will not have to because the police officer could do that.

Thurgood Marshall:

I didn’t say booking shop, I said bucket shop.

Richard L. Parker:

Bucket?

Thurgood Marshall:

Yes, where you sell stocks and bonds over the telephone.

Richard L. Parker:

Okay.

Thurgood Marshall:

Could he go in there.

Is there any other place that you can go in like this other than a pornographic store?

Richard L. Parker:

I would think the judge would have —

Thurgood Marshall:

Give me one then.

Let me see which one has —

Richard L. Parker:

There’s noting written by statute but I think the judge —

Thurgood Marshall:

That’s right.

Richard L. Parker:

That’s correct.

Thurgood Marshall:

That’s right.

Richard L. Parker:

It’s not written in statute.

Thurgood Marshall:

For example you wouldn’t go in your racetrack in Goshen and do that, would you?

Richard L. Parker:

To go in there?

Thurgood Marshall:

In Goshen, you wouldn’t in that racetrack and go in there and seize all that books, would you.

Richard L. Parker:

If that — if what I’m doing if there was probable cause to believe —

Thurgood Marshall:

That there were selling dirty books?

Richard L. Parker:

Or if there was —

Thurgood Marshall:

One other thing?

Richard L. Parker:

Well, let’s assume that the racetrack was illegally gambling, taking that’s illegally —

Thurgood Marshall:

Name me an instance where it happened?

Richard L. Parker:

I cannot name you another instance, Your Honor.

Thurgood Marshall:

Any place in New York.

Richard L. Parker:

I cannot name you another state that I’m personally aware of.

Thurgood Marshall:

Any place else in the United States and then I’m going to the world.

Richard L. Parker:

I cannot name you an instance of that, Your Honor.

Thurgood Marshall:

Thank you.

Warren E. Burger:

Your time has expired, counsel.

Richard L. Parker:

Thank you, Your Honor.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.